Tag Archives: human rights

November 2018 – Issue 13(2)

This special issue of Nordicum-Mediterraneum contains selected proceedings from three research circles within the Nordic Summer University (NSU): Human Rights and International RelationsUnderstanding Migration in Nordic and Baltic Countries and Patterns of Dysfunction in Contemporary Democracies; Impact on Human Rights and Governance. The meetings took place in Saulkrasti, Latvia, from 29/7 to 2/8 2017 and in Copenhagen, Denmark, from 2/2 to 4/2 2018.

Continue reading November 2018 – Issue 13(2)

An Introductory Note

This special issue of Nordicum-Mediterraneum contains selected proceedings from three research circles within the Nordic Summer University (NSU): Human Rights and International RelationsUnderstanding Migration in Nordic and Baltic Countriesand Patterns of Dysfunction in Contemporary Democracies; Impact on Human Rights and Governance. The meetings took place in Saulkrasti, Latvia, from 29/7 to 2/8 2017 and in Copenhagen, Denmark, from 2/2 to 4/2 2018.

The program of the research circle, Human Rights and International Relations, ran from 2015 to 2017. This circle explored how human rights militancy and more generally the protection of human rights are affected by the international human rights regime and the way this regime enters state relations, and it also examined how the international human rights regime modifies the relations between states and how this is explained in international relations theory.

Understanding Migration in Nordic and Baltic Countries runs from 2017 to 2019. This circle addresses contemporary migration through the lens of representation. Interpreted broadly as various means of capturing, contextualizing, interpreting, and defining people, institutions, politics, and histories, representation should encompass both tangible renderings – such as photographs and films – and also a wide range of practices and processes whose representational forms serve in specific ways to produce the subject matter itself.

The study circle about the Patterns of Dysfunction in Contemporary Democracies; Impact on Human Rights and Governance runs from 2018 to 2020. This circle endeavours to study different patterns of dysfunction in contemporary democracies and in particular the insidious processes which undermine the traditional canons of liberal democracy, notably encapsulated in the rule of law and human rights. Many factors are involved in these insidious processes and the state of the various democracies can be seen as nodal points between different factors that are criss-crossing and thus creating a unique constellation: populism, nationalism, corruption, fear, social isolation, ignorance, poverty, luxury, injustice, rootlessness in its various forms are signs of unbalances within democracies on both the global, national and local levels.

The contributions from these circles evolve around the issues of human rights, democracy (including citizenship) and religion.

Jean-Pierre Cléro approaches democracy from the perspective of generational justice. Acquired pensions rights collide with the constraints of democracy and create dilemmas. Lucas L. O. Cardiell addresses other kinds of dilemmas when measures of citizen deprivation send the international protection of citizens’ rights on collision course with citizenship as the domaine réservé of states. Eyassu Gayim studies the contentious issues behind and between democracy and human rights and considers the possible conflicts involved in using the Human Rights-Based Approach to measure democracy.

Julio Jensen examines the origins of human rights and points at the important work of Bartolomé de las Casas and Francisco de Vitoria as initiators of a certain kind of resistance against state power. Marianna Barchuk-Halyk approach human rights from the increasingly important notion of human security and the new UN doctrine about the Responsibility to Protect. Magdalena Tabernacka examines the human right of freedom of religion, and emphasizes the discrepancy found in Poland between the formal adoption of relevant legal measures and the effective protection of the right.

Giorgio Baruchello addresses religious and philosophical beliefs about abortion and their relation to claims about human rights, and how possible conflicts spell out in various social contexts. Welfare provisions and positive attitudes to pregnancy tend to make abortion less necessary. Magdalena Tabernacka discusses the implementation of religious freedom  in Poland and how circumstances and will impact the effective implementation of this freedom. Julio Jensen considers how an egalitarian tradition within Judeo-Christian thinking has inspired resistance against state power.

The special issue contains the following papers

Jean-Pierre Cléro

University of Rouen, France

Democracy Put to the Test of Age

A Case Study Concerning the Dysfunction of Modern Democracy

Abstract:  After having defined with some degree of precision the concept of a dysfunction which has a very particular meaning within politics, since a regime – be it democratic – can bring forth situations which over time will not be sustainable, we will analyse the case of the retirement pension system in which the generation at work takes care of the generation not working any more. This care meets with some particular difficulties linked to inequalities in what regards economy, politics (resulting from demography), health and social conditions. Certainly, these inequalities can be covered up for some time by a play of fictions which is partly analysed here. A situation seemingly without future considering the age pyramid is strangely enough viable in fact as certain sociological studies have shown, and we endeavour to find a clue to this fact in a dialogue between two persons, who separated by about forty years cross their points of view on how contemporary relations between generations play out. However, we are not quite sure that this play between fictions is a full substitute for the economic realities. We outline here some first steps in an area rich with contradictions, which we endeavour to illuminate by some elements of a theory of fictions.

Julio Jensen

University of Copenhagen, Denmark

A Note on the Origins of Human Rights:

Bartolomé de las Casas and Francisco de Vitoria

Abstract: In the wake of the Spanish arrival in America, a controversy arose with respect to the legitimacy of the conquest and the colonial rule. This debate was started by the Dominicans in the New World, who denounced the oppression of the native population. The most renowned participants in these discussions were Bartolomé de las Casas and Francisco de Vitoria. The former received the title of “Defender of the Indians”, while the latter is remembered as a central figure in the foundation of international law. Through the debates concerning the conquest of America, one precondition – noted by Habermas – for the emergence of human rights is explored namely resistance against state power on the basis of the egalitarian tradition belonging to Judeo-Christian thinking.

Lucas L. O. Cardiell

Migration Institute of Finland

Citizenship Deprivation: A Violation of Human Rights?

Abstract: In the past few years, the issue of citizenship deprivation has risen considerably on the agenda of the international community following the recent terrorist attacks in many States. Many citizens have been deprived of their nationality based on involvement in terrorist activities or possibly on the ground of national security. In consequence, an increasing body of legal and political discourse on citizenship deprivation has been added to the literature and the academic discussions on the topic at hand. This paper argues that despite the progress in IL/IHRL, which usually creates limitations in the attribution and deprivation of citizenship, the right to citizenship falls within the domaine réservé of states. It also argues that even though there are certain legal instruments that prohibit nationality deprivation resulting in statelessness, as of the 1961 statelessness convention, the issue of nationality deprivation most likely creates a legal vacuum for individuals concerned when the acquisition of other rights is necessarily linked to nationality.

Magdalena Tabernacka

Uniwersytet Wrocławski, Poland

The Human Right to Freedom of Religion in the Polish Education System

Abstract: Teaching religion in public schools has a significant bearing on the implementation of the individual’s right to freedom of religion and belief. Even if the state outlines a model for teaching religion that is compliant with the standards for the protection of human rights, an infringement of these rights may occur due to faulty execution of the existing provisions.  The fact that a given belief system obtains the status of a majority religion does not exempt the state from its obligation to ensure the effective protection of the rights of non-believers and members of minority religions.

Marianna Barchuk-Halyk

Precarpathian National University named after

Vasyl Stefanyk, city of Ivano-Frankivsk, Ukraine

Human Rights as a Part of the Human Security of Ukraine

Abstract. The paper is dedicated to questions of human security, the importance of which grows in international relations, yet its legal and political meanings remain ambiguous. The human security concept is about the protection of a human being or a minority group conceived as the responsibility of the states, or the international community, when the national governments cannot guarantee this security or when they consciously violate these rights. The concept of Responsibility to Protect is connected with human security. The concept is about the state’s duty to ensure the security of a person.

Giorgio Baruchello

University of Akureyri, Iceland

Religious Belief, Human Rights, and Social Democracy: Catholic Reflections on Abortion in Iceland

Terms such as “pro-life” and “pro-choice” evoke animated responses in the Anglophone world and can even win, or lose, major elections to political parties, candidates and movements. In the Nordic countries, however, the same terms and related responses are generally perceived as academic, at best, or as American, at worst. The issue of abortion seems to have been settled long ago in the Nordic context, both legally and, above all, socially. Does it mean that it has also been settled ethically? I argue that this is far from being the case and present an Iceland-based approach to the issue that, while leaving women’s rights and freedoms untouched, can accommodate to a worthy extent the defence of Scandinavian-style social democracy as well as  the traditional Catholic opposition to abortion.

Eyassu Gayim

University of Gothenburg, Sweden

Democracy, Human Rights and the UN Human Rights-Based Approach

Although democracy and human rights are universally shared values, their content has always been contested. The controversy concerns the nature of the human being, how the self relates to the community and the state, and how social and political relations should be formed. The UN followed its own political philosophy regarding this when the international regime of human rights was developed by acknowledging individual and people’s rights and democracy. This study highlights the core contentious issues behind democracy and human rights, how these concepts are intertwined and what the implications of using the Human Rights-Based Approach is to measure democracy.”

Human Rights as Part of the Human Security of Ukraine

The present reality of the European Community requires a complex analysis of international and inter-ethnic crises and armed conflicts. The context of recent events, the military conflict in Ukraine, human security in Europe are the key components in the policy of the European Union and number of democratic countries.

In Ukraine we have problems with the main part of human security as human rights, because of the negative heritage after the USSR as well as a difficult political and economic situation and a low level of legal culture. After the beginning of the conflict in 2014, the interest in human rights started to be in the first row and caught the attention of politics as well as society as a whole in Ukraine. The problem became so intense that the events and popularization of how to solve the existing issues in the country took its beginnings and action followed.

Before we actually get to talk about either human rights or human security, we should ponder on the following questions: What is security? What are its peculiarities? What is personal and international security and what influence does it have on human rights?

Security studies is a research area that has an interdisciplinary nature. It is linked to international relations, history, law, political science, economics, and several areas of military studies. The sources for this discipline are academic research and the monitoring of the behavior of the subjects of international law functioning under different conditions and depending on a series of external and internal factors. Security is divided into national and international according to the subjective criterion, and into military, political, economic, ecological, and informational according to the objective criterion[1]. Human security is among the latter group.

The notion of security has a subjective and politically charged nature, and it can change depending on the subject’s point of view. It can, in turn, generate a so-called security dilemmawhich has to do with conditions of uncertainty. For instance, the increase of military potential in a certain country or the conclusion of military treaties can cause neighboring countries to experience the sensation of a security deficiency[2]. Where does it come from? A couple words about history are needed.

The search for means to establish lasting peace in the international community has found its way through the idea of collective security. This concept of collective security consists in countries joining forces in order to achieve superiority in armaments, impose collective sanctions on the aggressor, and, finally, protect the mutual values of the participating countries and the “sense of international solidarity”[3]. It means that the countries interacting in the international activities accommodate their own national interests to the requirements of international security. Collective security is a shared value for the actors in international relations, it is a global value, and concerns global security (comprehensive security concept by Barry Buzan).[4] Collective security is furthermore a legislative and political system whose aim is to prevent probable conflicts among countries participating in international relations, and keep peace permanent. The institutions of collective security are as follows: The United Nations, the Organization of the Security and Cooperation in Europe, the European Union. The first to verbalize this idea was Woodrow Wilson, the President of the USA. By his initiative, the League of Nations was founded in 1919.

The complicated consequences of the Second World War and the endeavor to find ways to eliminate them urged the international community to found an organization that would unite the activities of the countries in the field of international collaboration and establishing peace basing their actions on international law. Thus, in 1941, the Atlantic Charter was signed, and then followed the Universal Declaration of Human Rights, where 26 countries declared their wish to collaborate and develop human rights. The fundamental document for United Nations activity was the United Nations Charter, also known as ‘the constitution of nations’. At that very moment, human rights became a separate sphere in the international discourse. The United Nations Charter is based on the principles of international law and it is the legal foundation for the United Nation activity. The United Nations Charter describes the aim, structure, bodies and the procedures of its activity, directions tor its activity, and the principles for the United Nations membership. The United Nations Charter also declares the supremacy of law and other international law obligations, which altogether makes the United Nations Charter a basic and essential document of international law. The United Nations are universal system with legal and institutional infrastructure, within whose framework the international community acts in order to solve mutual problems on both regional and global levels. The United Nations are the groundwork for international security. The main United Nations body is the Security Council, which is responsible for keeping international peace and security. According to the United Nations Charter principles, the United Nations has monopoly on using force to resolve various international conflicts (Chapter 7)[5].

The present-day notion of security has altered after the Cold War ended. It evolved from a brief notion of military threat to a multifaceted idea which includes economical, ecological, and social components. Human rights and their part in the legal relations system are another crucially important sphere. Human security relies on countries’ obligations, and the human rights recorded in international documents.

 The need of security is one of the fundamental personal needs that, according to Maslow’s hierarchy, regard all the aspects and spheres of human life. What it involves is not only a threat of armed conflict, but also the risk of losing something particularly valuable to an individual, that is, psychological comfort. The sense of security provides people with an opportunity to survive and live, to have their independence, human dignity, and a chance to grow. It gets them into a state of rest and permits a number of freedoms, such as freedom of thought and speech, the right to identity, including national, religious, and linguistic. The sense of security enables people to exercise their rights and grants them a sense of their rights being respected on both the personal and civilian levels.

By the end of Second World War, the state was still the primary subject of security; however, in present-day international affairs, the role of human being and non-state actors feature instead as ones of the key roles. Human rights are a branch of constitutional and international law that aims at the institutional protection of human rights, people, or larger groups; it’s aims also include control over rights enforcement and protection. By the first half of the 20thcentury recognition or non-recognition of human rights had belonged to the state. Occasionally, it is still true even nowadays. It was thanks to the 1909 Geneva Convention[6] and The International Red Cross and Red Crescent Movement,[7] starting in 1919, that began to draw the international community’s attention to the issues of human rights violations, especially during armed conflicts.

The tool for international community’s action in emergency situations is the international humanitarian law of armed conflicts, which regulates behavior of combatants and defines their status, as well as the status of civilians and prisoners. The turning point for defining human rights was the Proclamation of the Universal Declaration of Human Rights by the United Nations General Assembly in 1948.[8] It was an unprecedented act of the states that proclaimed freedom and equality for all. It was a cornerstone for building the human rights systems on the international level. These positions were consolidated by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, defining the state’s obligations towards its residents where their right to strike and right to take part in trade union activity were emphasized.[9]

On the European level, The European Convention on Human Rights (ECHR – formally the Convention for the Protection of Human Rights and Fundamental Freedoms) has an important function. It has become a summary of the achievements of the preceding documents in the realm of human rights, in particular due to its mechanisms which can restrict the violation of human rights and sanctioning violations. The ECHR catalog of human rights has constantly been improved in the Supplementary records containing the register of not only state residents’ rights, but also foreign nationals and non-nationals.[10] The important part in the system of preventing human rights violations belongs to the judicial branch, that is the international tribunals and courts.

The process of European integration and the enlargement of European Union has increased its competence in the sphere of civil rights and has influenced the Сharter of Fundamental Rights of the European Union. It is a fundamental compilation of human rights and civil obligations which is based on common values such as dignity, freedom, human equality, consideration of cultural differences and national identities.[11]

The international system of human rights protection would not have survived – without the 1972-1975 Conference on Security and Co-operation in Europe – Organization for Security and Co-operation in Europe (CSCE-OSCE) process dedicated to two issues: security and human rights. It was an ideological confrontation between East and West, the United State of America and the Soviet Union, resulting from different ideological grounds.[12] The absence of analogies to the CSCE process is explained by the fact that before it emerged, the East-West relationships had not included the human rights issue due to the fundamental contradiction of views, doctrines, and practices.

The probability of an armed conflict sidelined a human rights sphere. The years of intense discussions resulted in the signing of the Helsinki Accords, which confirmed the nations’ right to self-determination, defined the duties of mutual collaboration in the humanitarian sphere, and included the respect of human rightsas one of the fundamental principles of international relations. Even though the Helsinki Accords did not spell out the control mechanism for human rights enforcement, it still stated that not only state governments but also NGOs are able to maintain the said control.

The strategic meaning of Нelsinki Аccords lied within the fact that 35 states of the post-war Europe signed a treaty making human rights a part of international relations. The institutionalization of the CSCE process into ОSCE, the availability of permanent departments ensured the implementation of standards for the sphere of human rights. OSCE is thus made into the regional system of international human rights protection. The variety of institutions dealing with human rights protection indicates in international law. Also, there are mechanisms which protect human rights but there are problems with implementation it in the states’ practice.[13] Human security handles such cases. Human security cannot exist isolated from the national security; therefore, it depends on how the state structure is functioning, its legal system, the society and human rights enforcement. These factors influence human activity, their opportunities, development, social integration level, and cooperation with the government.

A threat to the personal security can be perceived in different ways, depending on the country and the cultural traditions, the multiethnicity of the country, its religion, system of social values, quality of life, migration etc. The reason for the sensation of personal security is the conviction that one’s own state and the international community stand guard over human rights and fulfill the duty to protect both persecuted – persons and ethnic groups, and that international law is a guarantee and a tool for achieving such a goal. The threats of the present-day world, such as the aggravation of armed conflicts and terrorism pose a new challenge to the world community.

The role of human security in this situation grows significantly. Human security is personal security of the human being in emergency situations such as armed conflicts, catastrophes, famine, poverty etc., that require aid or intervention from international organizations based on international law.

The segregation of human security as an individual sector began in 1982 at the UN session, when Olaf Palme made a report to the United Nations Disarmament Commission concerning the humanitarian crisis in the Iran-Iraq war. In Ukrainian security studies, the interpretation of human security is slightly different from what is found in the general scientific discourse. It is the state of the sense of security of a person, family, ethnic group, nation, and their ambitions, ideals, values, traditions, culture, opportunities of growth and freedom of choice regardless of the race, gender, language, and religion[14]. It has connected with a series of historical factors that affect the sense of security in Ukrainian society, which is firstly centuries without it is own state, then Soviet government, and, finally, the present war in eastern Ukraine.

The idea of human security in Ukraine is developing in the three following directions: security of physical and mental health; free self-definition of residents, social groups and peoples; security of residents in terms of free choice of development path and the general opportunity to choose one’s own future. All these point towards a peculiar sense of security directly connected to freedom and the expression of one’s will, independence of actions and opportunity of choice[15]. This concept is somewhat similar to the United Nations’ concept of Sustainable Development and is closely linked to humanitarian politics; it is also a so-called ‘mitigating element’ of security. It is worth noting that in Ukraine the ethnic and national security is another element of national security, as several models of national identity coexist at the same time in the state as well as the subsequent threats.

Nowadays, human security is facing a number of challenges. There is poverty as a structural failing, epidemics, human trafficking, various kinds of violence (ethnic violence included), and terrorism. The international community is searching for ways to solve these problems. Quite a large number of sectors are covered by the activities of the different United Nations Commissions such as the UN Human Rights Council, Commission on sustainable Development, the UN Entity for Gender Equality and the Empowerment of Women etc. Furthermore, if the state is willing to ensure its residents’ security, more and more often it has to take action outside its borders, for instance, in the form of various missions. Some threats go far beyond conventional threats, e.g. in the cyberspace. The trends in world politics, armed conflicts and humanitarian intervention strengthened the attempts to solve different problems. It was a basic reason why the United Nations Trust Fund for Human Security (UNTFHS)was founded in 1999 and finances activities carried out by UN organizations; they define human security as a “dynamic and practical policy framework for addressing widespread and cross-cutting threats facing Governments and people” and “all individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential”[16]. The UNTFHS presents strategic ways to solve different challenges based on the “Human Security Unit Strategic Plan 2014-2017”[17] and creating a new interdisciplinary conception about human security activities and their implementation in the politic life of the international community.

Human security is based on 3 aspects: International Humanitarian Law, Human Rights, and the Responsibility to Protect concept. The international law is a so-called ‘law of nations’, and it is a regulator of international community’s activities.

As for the Responsibility to Protect concept, it embodies the idea of a state’s duty to protect its residents. However, as a matter of practice, it is quite often that countries, especially those of the great powers, do not adhere to international law, which causes humanitarian crises in different parts of the world.[18] The task of human security is to generate efficient law mechanisms that would influence states’ actions. The key questions that human security raises are: how to secure human rights? How and when to exercise the right to use force when solving conflicts? The monopoly of the right to use force belongs to the United Nations Security Council, which is supposed to use it in situations of an extraordinary threat to international peace, and when an act of aggression has been committed. Also, the Security Council can delegate authority to undertake repressive actions to regional institutions (Article 53).[19] The ban on one state proffering threats of using force towards another state is one of the basics of international relations.

Theoretically, the states participating in the international sphere should strive for stability and peace on both the local and international levels, yet, when national interests check into the game, the states declare adherence to the international law on the one hand, but just breach the law on the other hand.

It is necessary to consider the fact that every state has a right to the inviolability of its territory, and the right of self-defense, which is stated in Charter UN (Article 5).[20] A problem arises: in what cases does the international community have the right to interfere with the state’s actions? The answer might be as follows: in cases of aggression towards another state, a threat to international peace, and major violation of human rights. Nonetheless, there are no clearly defined limits for the massiveness of human right violations. It’s undermines the authority of and trust in the international organizations, sets precedents that lead to global consequences in the field of international law.

The Situation in Ukraine

Military conflicts which have not been solved become a threat to human security, and point in practice to a certain weakness of the international organizations.[21] A striking example is Russia’s aggression towards Ukraine, the annexation of Crimea and the war in Donbas that has been in progress since 2014. Avoided to be seems extremely one-sideare few comment of those facts are needed.

The aggression of Russia to Ukraine has two sides – military-political and humanitarian. If we compare the principles of International Law and the actions of Russia as for Ukraine we will see that Russia violated the rights of Ukraine as a sovereign subject of international law, that is the principle of the territorial integrity, they interfered in internal affairs, threatened to apply the power, made the act of aggression against Ukraine, that is applied the power by using the armed forces and annexed the part of the territory (Autonomic Republic of Crimea). According to the United Nation Charter, the principle of sovereignty is a customary international right. The annexation of Crimea by using armed forces is the breaking of rights of international law called ius cogens, that is a direct duty of the UN membership. The actions of Russia Federation in eastern Ukraine are the acts of ordinary aggression. The problem is that the example of Russia can be a negative precedent to other countries which will want to review the established borders. For example, for numerous violations Russia can be dismissed from the UN according to the UN Charter norms (Ch.2, Art.6)[22] Іt is clear that this is breaking of the international law (such as The Budapest Memorandum on Security Assurances,among others 10 articles in Helsinki Accords,a, b,c, d, e, g Article3, UnitedNationResolution № 3314, International Humanitarian Law:

 

TheblockadeoftheportsorcoastsofaStatebythearmedforcesofanotherState)

(“The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.)Art 3 (G) № 3314[23]

Vladimir Putin, the president of the Russian Federation, manipulated peoples’ right of self-determination and called the annexation of Crimea an act of defending the Russian-speaking residents of the peninsula. He referred to the Responsibility to Protect concept as the ground for the intervention of Russian troops into eastern Ukraine, that is the necessity to defend Russian citizens and Russian-speaking residents. It is clear that this is an absolute breach of international law (among others 10 articles in The Helsinki Accords, The Budapest Memorandum on Security Assurances, The Constitution of Ukraine, The Constitution of Crimea and human rights during the conflict), as the membership of a certain linguistic group does not imply state citizenship. Military actions in Donbas have furthermore led to a humanitarian crisis in the Russian-occupied territories.

The key violations on the part of Russia caused by the war are the annexation of Crimea and the violations of Ukrainian – sovereignty, its borders and territories. In the course of Russian aggression towards Ukraine, major violations of human rights have occurred, the following in particular: forced relocation the residents of Crimea and the eastern part of Ukraine; turning residents into refugees, ethnic discrimination (Ukrainians and Crimean Tatars), linguistic discrimination (Ukrainian-speaking people), illegal eviction, appropriation of property, deliberate warfare against civilians, (which caused numerous victims among them) breach of humanitarian law, torturing Ukrainian military servicemen and prisoners, forced acquisition of Russian citizenship under the threat of punishment, acts of violence, crimes, kidnapping, forced labor, violation of the inviolability of journalists and medical staff.[24][25]

 The list can go further, but even now it points to the large scale of human rights violations. In situations like this, imposing sanctions on Russia is not exactly an efficient means to solve the conflict. The Russian-Ukrainian struggle demonstrates how fragile the international law is and how Russia continuously persists in breaking it. The case of the Russian-Ukrainian conflict has been called ‘the war of the 3rdmillennium’ which aims at destroying mental and cultural identity of the territorial community. It is a new challenge for Ukraine as well as for the entire international community. Russia has subverted the international order, which it had previously promised to protect. It is another evidence of the global failure of both human rights enforcement and human security in general.

The conflict between Ukraine and Russia caused a deficit of humanitarian security. To increase the level of the humanitarian security in Ukraine it is necessary to realize a few aspects. First, these are the new legal documents both at the international and state level. They could regulate the issue of applying the power in crisis situations, the prerogative of which belongs to the United Nations Security Council. With this purpose the international community may not create new but review already existing documents in international law. Second, this is the activity of international and national non-governmental organizations, which task is the monitoring of the current situation in Ukraine and informing the international community, attracting attention to the existing problems. The Red Cross, The Maltese Service and other organizations occupy an important place. They conduct important humanitarian actions and promote international humanitarian cooperation. Third, this is the activity of Ukrainian society in the direction of creating and developing civil society. An active part of Ukrainians realize this idea in the volunteer movement, which we can call without exaggeration the key success after the Revolution of Dignity. Yes, the volunteering movement managed to rise the Ukrainian army to combat level, which had been in the decline at the beginning of the annexation of Crimea, which caused the lack of armed resistance. However, already in August 2014, the potential was renewed and the Ukrainian army achieved combat capability. Nowadays there are several public initiatives: the help of settlers and their families, free juridical consultations, courses of the first aid, tactical medicine etc. In total the volunteering movement for the needs of Ukrainian army has 15 thousand people. Only an improved personal position for every Ukrainian and the rise of the legal culture in the country can be a contribution to the rise of the Ukrainian humanitarian level.

Conclusion

Global security in the world can be ensured by means of the development of each and every country through the supremacy of the law in international relations. Human rights have made the human being the subject of international relations. Enforcement of human rights on all levels such as daily-life level, civilian, and international, is the guarantee of human security and stable legal relations. The means of securing human rights in critical situations are human rights enforcement by the states, the military, by stabilization and peace-support missions, and through a search for mechanisms to the implementation of international law into the practice of states. The increase in the level of legal education in the post-Soviet countries, raising public awareness about the value of human rights is of specifically high importance. In Ukraine, these elements are crucial for democratic reforms and the construction of civil society, and voluntary movements and NGOs do make significant steps towards the achievement of these goals.

References

  1. Buzan B., New Patterns on Global Security in the Twenty-First Century, International Affairs, 67.3, 1991
  2. Falk R., Humanitarian Intervention and Legitimacy Wars. Seeking Peace and Justice in the 21st Century, Routledge, London and New York, 2015
  3. Kuźniar R., Prawa człowieka. Prawo, instytucje, stosunki międzynarodowe, Wydanie trzecie, uzupełnione, Fundacja Studiów Międzynarodowych, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004
  4. Mero, The Humanization of International Law, Martinus Nijhoff Publisher, The Hague, 2006
  5. Walt S.M.n T., International Relations. One World, Many Theories, Foreign Policy No. 110, Special Edition: Frontiers of Knowledge (Spring 1998), pp. 29-30 (Published by the Slate Group, a Division of the Washington Post Company)
  6. Zięba R., Instytucjonalizacja bezpieczeństwa europejskiego. Koncepcje – struktury – funkcjonowanie, Wydanie czwarte poprawione i rozszerzone, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, op.cit.

Internet sources 

The United Nations Documentations

The International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols

The International Committee of the Red Cross and Red Crescent Movement

The United Nations, The Universal Declaration of Human Rights (UDHR)

The United Nations Human Rights, The International Covenant on Civil and Political Rights

The Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms

The European Commission, EU Charter of Fundamental Rights

The National Institute for Strategic Studies, The Social Security: Essence and Measurement

The National Institute for Strategic Studies, The Humanitarian National Security Complex

The United Nations Trust Fund for Human Security

The United Nations Trust Fund for Human Security, The Human Security Unit, Strategic Plan 2014-2017

The United Nations Codification Division Publication, Carter of UN, Chapter 8 – Regional arrangements

The United Nations Codification Division Publication, Carter of UN, Chapter 2 – Membership

The United Nations General Assembly Resolution 3314, Definition of Aggression

The Chapter of the United Nations and Statute of the International Court of Justice

The Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights situation in Ukraine 17 August 2014

 

Endnotes

[1] Zięba R., Instytucjonalizacja bezpieczeństwa europejskiego.Koncepcje – struktury – funkcjonowanie, Wydanie czwarte poprawione i rozszerzone, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, op.cit.

[2] Walt S.M., International Relations. One World, Many Theories, Foreign Policy No. 110, Special Edition: Frontiers of Knowledge (Spring 1998), pp. 29-30 (Published by the Slate Group, a Division of the Washington Post Company).

[3] Kuźniar R., Bezpieczeństwo w stosunkach międzynarodowychW: E. Haliżak., R. Kuźniar, Stosunki międzynarodowe. Geneza, struktura, dynamika, 2006, p. 143.

[4] “Security is taken to be about the pursuit of freedom from threat and the ability of states and societies to maintain their independent identity and their functional integrity against forces of change, which they see as hostile. The bottom line of security is survival” Buzan B., New Patterns on Global Security in the Twenty-First Century, The Royal Institute of International Affairs, Blackwell Publishing, 67.3, 1991, pp. 432-433.

[5] The United Nations Documentations

[6] The International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols

[7] The International Committee of the Red Cross and Red Crescent Movement

[8] The United Nations, The Universal Declaration of Human Rights (UDHR)

[9] The United Nations Human Rights, The International Covenant on Civil and Political Right

[10] The Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms

[11] The European Commission, EU Charter of Fundamental Rights

[12] Kuźniar R., Prawa człowieka. Prawo, instytucje, stosunki międzynarodowe, Wydanie trzecie, uzupełnione, Fundacja Studiów Międzynarodowych, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, p. 12

[13] Ibidem, p. 244-245.

[14] The National Institute for Strategic Studies, The Social Security: Essence and Measurement

[15] The National Institute for Strategic Studies, The Humanitarian National Security Complex

[16] United Nations Trust Fund for Human Security

[17] United Nations Trust Fund for Human Security, The Human Security Unit, Strategic Plan 2014-2017

[18] Meron T., The Humanization of International Law, Martinus Nijhoff Publisher, The Hague, 2006

[19] The United Nations Codification Division Publication, Carter of UN, Chapter 8 – Regional arrangements

[20] The United Nations Codification Division Publication, Carter of UN, Chapter 2 – Membership

[21] Falk R., Humanitarian Intervention and Legitimacy Wars. Seeking Peace and Justice in the 21st Century, Routledge, London and New York, 2015

[22] The United Nations General Assembly Resolution 3314, Definition of Aggression

[23] The Chapter of the United Nations and Statute of the International Court of Justice

[24] The Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights situation in Ukraine 17 August 2014

[25]The Guardian, Ukraine: kidnapped observers paraded by pro-Russian gunman in Slavyansk

Citizenship Deprivation: A Violation of Human Rights?

  1. Introduction: the relevance of the issue

During the past few years, there have been an extensive analysis and fervent political and legal debates over criminal and administrative measures to fight international terrorism, specifically to cease the flow and prosecute the so-called “foreign fighters” (FF). In various literature FFs are generally referring to as ‘home-grown terrorists’ or ‘radicalized citizens’ (Mendelsohn 2011, 189; Malet 2009, 13). Even if there is no well-established definition, this paper refers to the following: A FF is “an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship”. (Krähenmann 2014, 6)

The impressive number of FFs joining terrorist organizations, and the international dimension of their activities, mobilization, and travel patterns have created heated political and legal discussions in various countries. It also resulted inan intensifying discourse around the‘growing threat to international security’.It has not only been about the number of FFs that is very impressive (more than 30,000), but also about the geographic diversity of individuals who have joined conflicts (de Guttry; Capone and Paulussen, (eds) 2016, 12-13; Bakker & Singleton 2016, 10-15 and Academy Briefing, 2014).

One of the means to fight international terrorism and punish individuals involved with terrorist activitieshas been applying citizenship deprivation, in other words, turning them into aliens. Noticeably, the practice of depriving individuals of their citizenshipis not a new phenomenon to the international legal domain. Itreached extreme levels during and after World Wars, as illustrated by the denaturalization of British and Belgian citizens of German origin after the World War I (Cloots 2017, 59). The Nazi era and inter-war years used it as a political tool to banish large numbers of people, such as political opponents and Jews. Belgium also applied citizenship deprivation to punish collaborators after World War II (Cloots 2017, 64).

The war against terrorism following the 9/11 events, together with the most recent terrorist attacks in Europe, revived the issue to the foreground. Effectively, as terrorist events can be considered as pure criminal acts (Travalio and Altenburg 2003, 98), various states have recently pondered citizenship stripping as a way of responding to these acts. In the UK, it was passed as part of the Immigration Act, which enabled the government to revoke citizenship in some cases even if it results in statelessness; in the US, it was proposed first as the Terrorist Expatriation Act and later as the Expatriate Terrorists Act, but neither passed (Sykes 2016, 749-763). In a comparable vein, reforms have meanwhile been announced in Israel, Spain, France, Belgium, Norway and the Netherlands (van Waas 2016, 472-475;Sykes 2016, 749-763).

This paper presents the thesis that citizenship is a human right and its deprivation violates this right particularly when it results in statelessness. In order to defend this opinion, the first section will highlight the definition of citizenship and its evolution as a human right and its legal status. The following section will elaborate on the universal and regional legal framework that regulates citizenship. The concluding section of this paper will outline an analysis of citizenship as a human right and the consequences of its deprivation will be drawn.

 

 

 

  1. Definition and evolution of citizenship as a human right and legal status

In her most famous work, The Origins of Totalitarianism, Hannah Arendt (2004, 297) argued that citizenship is ‘the right to have rights’, whereas ‘the Rights of Man’ proved to be inadequate to actually protect ‘abstract’ human beings who were no longer recognized by ‘their state’. Only belonging to ‘one’s own people, that is, as a fundamental status that gives rise to concrete rights’ could ensure protection of supposedly inalienable and universal human rights (Arendt 2004, 296). In a similar vein, Sandra Mantu (2015, 12) also expresses the same opinion and claims that ‘citizenship may be labelled as a secure status, if not the most secure status a person can enjoy. This is true because numerous political, civil, economic, and social rights are enjoyed through citizenship.’

One can conclude, from Arendt and Mantu´s mutual standpoint, that having citizenship is a gateway to other rights and that citizenship is the highest and most secure legal status one can hold in a state. It also seems that citizenship lies at the very heart of the concept of the nation-state. Further, there is the question of how citizenship is constructed as a legal right in a combination of domestic and international developments. Since IL and IHRL are designed to protect both state and individual interests, it is not surprising that they both form paths by which citizenship is constructed. Similarly, domestic law affirms who is and can or who is not and cannot become their citizen. For example, citizenship can be acquired through naturalization after complying with a state’s rules concerning its domestic citizenship regulations. In most States, one of the ways in which an individual can naturalize is through the jus domicilli principle or marriage. With regard to the relation between IL and IHRL as long as citizenship law concerned, for example, the Hague Convention states that: “This law shall be accepted by other states in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to citizenship law.” (Article 1 (b) of The Hague Convention 1930)

This paper confirms that the principle of state autonomy in citizenship matters, and acknowledges the limits to the states’ prerogative to determine the membership of their citizenry.  Discussions on the formulation of a right to citizenship as a human right only took place in the mid-20th century. It was first confirmed as a right in non-binding regional documents, including the American Declaration on the Rights and Duties of Man (1948). The universal protection of the right to citizenship was envisaged by the Declaration, which has since become binding as customary international law. Although international human rights law under the UDHRaffirms that human rights apply to all individuals regardless of their citizenship or national origin, citizenship determines the scope of the application of basic human rights and obligations of states to other states and the international community, such as the application of multi- or bilateral conventions and treaties.

In its famous judgement, the International Court of Justice (ICJ) in the Nottebohm (Liechtenstein v. Guatemala)case has described citizenship as a “legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties” (ICJ Reports 1955: 4, 23. See also art. 2 of the European Convention on Citizenship). Citizenship can thus be understood as a link between an individual, a country and the international community.

This link results in mutual rights and duties on all sides, including loyalty to the state of citizenship, while the very same state reciprocates by protecting its nationals. Further, citizenship holds the keys to international legal protection and holds States accountable for their actions and to recognition by a system cantered on Statehood. Under domestic law, citizenship is defined as denoting full membership in a state or as a sum of legal rights and duties of individuals attached to citizenship (Mantu, 2015, 1). Even if there is no symmetric catalogue of the rights and duties that nationals possess in relation to their state, Mantu states that ‘it is generally considered that the content of law to citizenship will vary from one State to another according to the domestic legal protections and political system surrounding the right to citizenship.’In this regard, Pocock also states that citizenship ‘enables us to define an indefinite series of interactions between persons and things, which may be restated as rights, used to define new persons as citizens.’ (Pocock, 1995, 45)

Moreover, it has been argued that several human rights instruments purposefully diminish the importance of citizenship so to prevent statelessness or the status as a non-citizen from being used as a basis for discrimination, in the sense that they make citizenship a non-prerequisite to enjoying human rights. Despite the central role the concept of citizenship played in the rise of human rights culture, the words “citizen” and “citizenship” are rare in the major international human rights instruments. Indeed, the sense of the instruments themselves is to erode the importance of the very concept which originally gave rise to the idea of fundamental human rights (citizenship), in the interest of doing away altogether with boundaries between privileged and non-privileged (Claude, 2003, 245).

Weissbrodt (2008, 248-250) also suggests that ‘because being human is the sole requirement entitling us to human rights, whether or not one possesses citizenship should have no bearing on whether we enjoy all of our human rights’. This has been stated by Donnelly (2003, 10), who sees human rights as literally ‘the rights that one has simply because one is a human being.’ Although States may have the primary responsibility for implementing internationally recognized human rights in their own countries… human rights are ‘the rights of all human beings, whether they are citizens or not.’(Weissbrodt and C. Collins 2006, 245) Because being human is, for him, the sole requirement entitling one to human rights, whether or not one possess citizenship should have no bearing on whether one enjoys all of her or his human rights.For example, the ICCPR requires states ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2, para 1). The European Convention for the Protection of Human Rights and Fundamental Freedoms requires state parties to “secure to everyone within their jurisdiction the rights and freedoms’(of the Convention). Similar provisions can be found in Article 2 of the UDHR.

Yet, having said that, it should not be understood that citizenship as a legal human right has always been protected and respected by States. As the most agreed opinion is that citizenship as a right means to ‘have rights’, this gives it the attribute of being far more than a legal sentiment of identity and belonging to a political community (state), more than a social fact of attachment to certain state. Therefore, to be deprived of citizenship means to weaken an access to other fundamental rights, such as the right of movement, right to access education, etc. Citizenship can be described as involving both inclusionary and exclusionary practices that are meant to express the meaning of identity and belonging within a specific political community (Mantu 2015, 3). From this, one indeed can see that the right to citizenship is widely recognized as a fundamental human right.

Kingston (2005, 23), in her article on the history of the practice of banishment, deportation and the deprivation of citizenship claims that ‘on the question of citizenship it is not often acknowledged that the state has power, not only to grant or deny residency and new citizenship in a political community, but also to revoke membership and expel those once deemed citizens.’ Additionally, one of the doctrines of state sovereignty refers to the fact that states have power over rules and principles for the loss and acquisition included in their domestic legal regime in respect to citizenship. As such, states are understood to be free to determine who the members of their national community are. Sandra Mantu (2015, 1) states that: ‘by designing legal rules dealing with the acquisition and loss of citizenship, states engage in a series of legal practices that shape the personal scope of national citizenship’.

Yet, the individual remains a state´s citizen and enjoys the rights guaranteed under its citizenship law but loses some of the rights that go with it. Being deprived of one’s own citizenship effectively causes one to lose all rights other than those recognized in international law as basic human rights. Thus, to revoke someone´s citizenship is not a measure to be taken lightly. The rights linked with citizenship, such as the right of movement, right to access to education, etc., are inherently affected, amounting to a severe limitation of human rights enjoyment and protection. Notwithstanding, international law does not absolutely prohibit deprivation of citizenship but it is, nevertheless, in accordance with various legal texts, sets out strict conditions for States to follow in order to deprive their citizens of their citizenship. It should not be forgotten, however, that citizenship loss is not only on the basis of public security threats or political motives. There are other justifications for its deprivation, such as, among others, fraud in naturalization, expiry of citizenship after long-term residence abroad or loss in case of acquisition of a foreign citizenship. Macklin (2014, 1) states that some States that prohibit dual citizenship may revoke the citizenship of an individual who gains the citizenship of another state. Many states also retain the power to naturalize the citizenship of a citizen who obtained citizenship through fraud or misrepresentation.

As we have seen, questions related to citizenship and the legal framework that constitute it were within the exclusive domaine réservéof states (Weis 1979, 66). States were autonomous in their citizenship matters. However, in the new millennium many international standards were developed regarding the rules and principles of acquisition and loss of citizenship. This development in the international arena has challenged this understanding. Arendt´s conceptualization ‘right to have rights’ would gradually be secured by shifting the power of citizenship and its deprivation from liberal democratic States to the international legal system (Spiro 2013, 2169).

This does not mean that a state’s right to determine citizenship law has remained unaffected by the development of human rights and human dignity, which has shifted the very foundation of public international law from a system of coordination of sovereign states to the well-being of human beings. Rather than making general assumptions about to what extent the sovereign rights of states are replaced or limited by human rights concepts of self-fulfilment and personal identity, it seems appropriate from a legal point of view to differentiate different areas in which human rights considerations influence the determination of citizenship or have been recognized in the process of obtaining increasing recognition by states. As examples, we refer to the naturalization of migrant workers, the issues of denationalization and arbitrary deprivation of citizenship and, finally, discrimination in granting naturalization. It is important to recall that in practice States have not always been willing to implement the principles of IL, IHR or CIL on citizenship prescribed by the relevant legal instruments and for different reasons. There are some states which have not signed and/or ratified relevant international law instruments, and which do not comply with even the general standards of CIL. Others have signed and ratified treaties, but still fail to implement all key provisions, opening themselves up to political criticism and the possibility of legal action in the domestic courts depending upon the domestic effects of international treaties. Other states again comply with certain international standards while not having signed and/or ratified the treaty they are contained in.

On this standpoint, one can claim that banishment has been used as a form to prevent future crimes and express the power of a state´s ability to meet its responsibility towards its sovereignty and to punish those who do not respect the law. This leads us to understand why citizenship is seen as a privilege not as a right, which in turn might explain why more often than not rules dealing with loss of citizenship will, as Mantu puts it: ‘indirectly target naturalized citizens’ (Mantu, 2015, 1). The citizenship link between a state and individuals was conceived mainly as a privilege, which at the international law level guaranteed the individual the enjoyment of a certain degree of protection outside his or her own country.

Citizenship should not be considered as a personal relationship between an individual and a state or allegiance of an individual towards his state, the development of IHRL on citizenship makes it a legal status embracing a set of mutual rights and obligations towards a state fulfilling certain requirements necessary for the coexistence of a sovereign state and IHRL. Regulating the right to citizenship on the international level reflects the interests of states, and the wording of relevant documents is typically vague and lacking in order to enable states to retain the regulation of citizenship as far as possible within their respective domestic spheres and the right ensured on the international level is frequently rendered meaningless in practice.

  1. The right to citizenship as set out in international legal instruments

Citizenship as a legal right confirms the membership of an individual in a state, and the definition of who is a national of a state is almost exclusively a product of domestic legislation. Further, an individual having a state´s citizenship is in many important respects subject to its own domestic laws, meaning that this individual may be recalled and penalized for his failure to return to his country. A national may be punished for crimes committed outside the state of citizenship or he may be subjected to judgements obtained against him in absentia. This in a way gives a pathway to the fact that foreign fighters are, and seem bound to always remain, ‘citizens of State X or B’ and, thus, are bound to its domestic laws.

The power of a state to regulate issues of citizenship, depriving foreign fighters of their citizenship as a result of terrorist acts for instance, is nonetheless limited by international human rights law.For one reason, this is due to the interplay between the citizenship rules of states and their commitments to the international legal regime on citizenship and, for another, any interference with the enjoyment of citizenship has a significant impact on the enjoyment of rights (UN 2011). This is evidenced by the IHRL limiting States’ discretion, through the principle of avoidance of statelessness, the right to respect for private and family life, non-discrimination, the principle of non-arbitrariness, the right to freedom of movement, and the right to enter one’s own country (Goethem, 2006, 4-6)

The legal regime on citizenship can be found in customary international law, in very few instances of case law, and arguably also within the universal human rights regime (Bilgram 2011, 2). Most importantly, however, its international standards are being developed in bilateral and multilateral treaties, supported by international bodies such as the UN. This is at the international level. However, this study is interested to focus on the European system as well, thus it is important to mention, at the European Union level, standards that have been set by the Council of Europe and to a certain extent also by the EU through EU law, although the latter has no competence per sein citizenship matters.

How states will address foreign fighters stems from the international human rights law which its cornerstone is that everyone has a right to, at least, citizenship, albeit no right to a specific citizenship of a specific state. The documents concerned, at least a great number of them, contain provisions on the law of citizenship. The approach of international legal instruments in this matter is necessarily in a sense that multilateral conventions obligate States Parties to criminalize specific terrorist conducts under national criminal law.

At the international level, the very first source of this cornerstone principle corollary to the right to citizenship is the 1948 Universal Declaration of Human Rights (UDHR), which accords everyone ‘the right to a citizenship’and guards against arbitrary deprivation of citizenship. (Article 15). Under its Article 15, the importance of the UDHR appears, with regard to citizenship law, as it guarantees protection against statelessness and arbitrary denationalization. However, although the UDHR is significant as a leading instrument to other legal instruments which was created after 1948, the UDHR is not legally binding on States, so this paper is merely considering the UDHR as reference.

Following its adoption, it became ‘necessary to spell out the general standards of the UDHR in legally binding instruments…covering the whole range of human rights’ at both universal and regional levels (Cassese 2005, 381). Moreover, Waas claim that the American Convention on Human Rights (ACHR)is ‘the most far-reaching right to citizenship in a legally binding human rights document to date’ (Waas 2008, 3). It is the aim of this study to consider Article 20 of the ACHR as of great importance. This article contains significant elements, including a fundamental recognition of the general right to citizenship, in particular by imposing a specific obligation to grant citizenship jus solito every person that otherwise would be stateless, the prohibition of arbitrary deprivation of citizenship, which contains the prohibition of discriminatory practices in citizenship matters.

As a side note, the combination of the mentioned elements results in a very comprehensive article that contains solid protections for the individual’s right to citizenship, and for this reason the discussion on protection of citizenship will be roughly around these elements. In addition to the American system, the IHRL on citizenship also consists of other regional human rights systems, including the Inter-American system, the European system, the African system, the Arab system, and the ASEAN system. These systems, as Vela puts it, share various common features, including the fact that they all possess at least one fundamental right’s instrument, at least one human rights body, and they were all ‘established under the auspices of an intergovernmental organization’. (Vela 2014, 54).

Like in the Inter-American system, the European and African systems are equipped with courts that can hear cases of violations of the rights stipulated in their respective regional documents, and a substantial amount of case law on issues of citizenship exists. The Arab charter is a relatively new development, and as a document it does not possess the same enforcement mechanism as the documents in the Americas, Europe and Africa possess. In the 1994 version of the Arab Charter, the article 24 did not contain an acknowledgement of a general right to citizenship. It stated that ‘Everyone has the right to citizenship. No one shall be arbitrarily or unlawfully deprived of his citizenship’.However, in the 2004 version of the charter, article 29 (1) acknowledges this right, saying that ‘Every person has the right to a citizenship as prescribed by law. No person shall be arbitrarily deprived of such citizenship nor denied the right to change that citizenship’.

Finally, the ASEAN declaration is a declaration, which means it contains the rights that all ASEAN members should strive try to protect, but it does not give rise to obligations. Article 18 ASEAN HRD does not recognize a general right to citizenship; the right to citizenship is limited insofar as the individual has the right to citizenship ‘as prescribed by law.’ The Inter-American, European, and African systems have complaints mechanisms, ‘through which individuals can seek justice and reparation for human rights violations committed by a State party’ (Vela 2014, 54) and have organs which have issued decisions on cases dealing with citizenship and statelessness. Both the Arab and ASEAN systems lack a complaints mechanism which makes the jurisprudence of citizenship in their human rights law underdeveloped. Importantly, the five systems lack regular enforcement mechanisms. In fact, the structure of the international adjudication makes it very difficult to enforce international norms governing the relationship between an individual and the state of his  citizenship.

The object of both binding and non-binding instruments on citizenship is to guarantee every individual with at least one citizenship, and instruments have aimed particularly at also restricting denial of citizenship, with the adoption of the 1961 Convention on the Reduction of Statelessness to be considered as a leading step at the universal level for this purpose (Chan 1991, 9). Inspired as it is by Article 15 of the UDHR, the 1961 Convention forbids loss of citizenship in some cases where the consequences of such loss would be statelessness, and thus forms part of international human rights law on citizenship, even if its title refers to statelessness, not to citizenship.

As far as citizenship deprivation is concerned, Article 8 of the Convention is especially noteworthy. Article 8(1) stipulates that ‘[a] Contracting State shall not deprive a person of its citizenship if such deprivation would render him stateless’. The second and third paragraphs of Article 8 list a number of exceptions to this rule, permitting denationalization to entail statelessness in certain limited circumstances. Those circumstances include cases where the person affected had obtained the citizenship by misrepresentation or fraud (Article 8(2)) or had, inconsistently with his duty of loyalty to the Contracting State, conducted himself in a manner ‘seriously prejudicial to the vital interests of the State’ (Article 8(3)(a)(ii)).

At the European level, The European Convention on citizenship 1997 is of paramount importance, being the first comprehensive citizenship convention (Waas 2012, 245). This convention reproduces the content of the UDHR and the 1961 Convention, but the safeguards it puts in place against statelessness and arbitrariness are more extensive. On the one hand, the 1997 Convention reduces the grounds on which persons can be stripped of their citizenship even if they become stateless as a result. Statelessness is only tolerated in the case of fraudulent acquisition of citizenship, but not when the person concerned conducted himself in a way ‘seriously prejudicial to the vital interests of the State Party’ (European Convention on Nationality 1997, article 7(3)).

However, the latter deprivation grounds may only result in statelessness if the Contracting State made a declaration to that effect at the time of signature, ratification or accession. Yet the 1961 Convention not only contains guarantees against statelessness, but also against arbitrary state conduct. To this end, Article 8(4) demands that any citizenship deprivation be consistent with certain procedural safeguards: the deprivation must be in accordance with law, and the person concerned must be entitled to a fair hearing by a court or other independent body. Moreover, Article 9 of the 1961 Convention prohibits citizenship deprivation on racial, ethnic, religious or political grounds. Although it leaves no doubt that the international materials discussed above have singular authoritative value, it should be noted that their legally binding force is limited.

For example, the 1961 Convention and the 1997 Convention have not been ratified by all legal systems studied in this paper. In terms of membership, only the Netherlands is party to both treaties.France, in contrast, is party to neither, and the United Kingdom and Belgium have signed and ratified solely the 1961 Convention. Other bodies of legal instruments constitute the right to citizenship and put limits on its deprivation, and supervision of these international standards on citizenship has consistently recognized the increasingly narrow restrictions on the discretion of states in respect to denial of citizenship.

In addition to the aforementioned conventions, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, (Art, 5) the 1966 International Covenant on Civil and Political Rights, (Art, 24) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, (Art, 29) among others, have codified the right to citizenship and contain provisions which form a high relevancy for international law on citizenship. Countries such as the UK, Australia, the Netherlands, France and Canada have either signed or ratified them.

There seems in fact to be a relatively uniform recognition of a right to citizenship, although in the case of some instruments a limited version of this right is expressed. In the cases of Europe and African, interestingly, neither the ECHR nor the ACHPR recognize the right to citizenship. However, on a closer look at the system rather than just the instrument, there is evidence that points towards increasing recognition of this right in the regions.

On the European level, standards have been set by the Council of Europe and to a certain extent also by the European Union (EU) through EU law, although the latter has no competence per sein citizenship matters. There are relevant duties under customary international law constraining state autonomy in citizenship matters. Important customary international law principles contain the duty to avoid and reduce statelessness, the prohibition of arbitrary deprivation of citizenship, and the general obligation of non-discrimination.

It is natural to look at international law and see what it is proposing as the studied phenomenon is of an international nature as well as looking at what measures states are taking in order to tackle it. Yet, the challenge encountered in a legal analysis of foreign fighters is that their legal status is of a controversial nature and involves a conceptual ambiguity. This in fact is paralleled by the uncertainty as to its legal status as there is no legal regime for foreign fighters and other individuals involved in terrorist activities per se. Rather, there is a conflation among different legal regimes. Meddling between international human rights law and domestic criminal law blurs the issue. Regardless of this and the lack of a comprehensive definition at the international level, terrorist acts, mostly associated with these individuals are crimes under domestic law, under the existing international and regional conventions on terrorism, might qualify as war crimes or as crimes against humanity.

The very nature of the debate about individuals engaged in terrorist activities assumes that the phenomenon is a new category. Looking at the individuals themselves and their status, in most cases they are fighting in armed conflicts and more specifically in non-international armed conflicts (Kraehenmann 2014, 3). Accordingly, non-state armed groups, including foreign fighters, do not enjoy combatant immunity and may be prosecuted under domestic law for mere participation in hostilities (UN 2000, 5). International human rights law continues to apply during situations of armed conflict. As is the case with all other members of state armed forces or non-state armed groups, foreign fighters are, at a minimum, bound by the peremptory norms of international law (UN 2000, 13).

Importantly, international human rights law affirms that human rights apply to every human being simply by virtue of being human. In practice, however, the existence of a legal bond of citizenship between an individual and a state continues to be a prerequisite to ‘the effective enjoyment of the full range of human rights’ (Adjami, and Harrington 2008, 93). Edwards describes the substantive content of citizenship by exploring it from different yet interrelated perspectives: that of the state, the international law perspective and that of the individual (Alice, in Alice and Waas, 2014, 30). As individual human beings, our individual legal identity derives largely from our legal bond with one or more states, expressed through our citizenship (Batchelor, 2006) Therefore, the adoption of the various human rights instruments, as noted by Cassese, has had ‘such an impact on the international community that no state currently challenges the concept that human rights must be respected everywhere in the world’. He continues to note that ‘a general principle has gradually emerged prohibiting gross and large-scale violations of basic human rights and fundamental freedoms’, making massive human rights violations reprehensible (Cassese 2005, 59). Yet, what is essential is the ‘complementarity’ between universal and regional human rights documents, since the regional systems ‘operate within the framework of the universality of human rights’ (Trindade 2008, 5)

From a general level, international law in the present day continues to respect the principles of sovereignty and equality of states. This means that a state can never be compelled to undertake obligations under international law without having given its ‘consent to be bound’ (Waas 2008, 40). Therefore, any constraints on a state’s discretion over citizenship matters have been the results of the willingness of states to be bound by international legal instruments that contain provisions that have resulted in those constraints.

 

 

  1. Thesis and conclusions

The first thesis of this paper is that citizenship is a protected human right and the newly expanded laws on citizenship deprivation puts the depriving state at risk regarding its international legal obligations. Another thesis is that the discussion on citizenship deprivation has been recently dealt with extensively with the implications of international human rights and international humanitarian law on the ‘war against terrorism’ and shifted from an administrative measure to criminal one. In other words, this has been done by using the lens of both criminal and administrative measures implemented by States at the domestic level as a result of two UNSC Resolutions 2178 and 1373, corresponding instruments and the willingness of States to keep their terrorist nationals away from their borders by depriving them of their nationalities. Additionally, these two UN Resolutions, together with the States´ new legislative proposals, have changed the understanding of who is subject to deprivation powers. Traditionally, citizenship deprivation has only been applied to naturalized citizens, as those who are native-born citizens were at risk of becoming stateless. Keeping in mind that some citizens are more protected than others depending on their category (individuals of dual citizenship or individuals of one citizenship).

A third thesis of this paper claims that deprivation of citizenship refers to rendering the individuals concerned of their citizenship, causing them to forfeit the rights they held as nationals. Although only a small number of nationals have had their citizenship stripped by their countries of citizenship, the newly adopted legislation in several states, mainly in Europe, in respect to citizenship deprivation has a major effect in the sense that citizenship as a legal status through which nationals enjoy human rights has become conditional on the citizen´s behaviour. This means that human rights violations, alienation and strained relationships between individuals and the State are ‘recognized as conditions conductive to the spread of terrorism’, Dowding and Mckeon (2016, 6).

This study has observed a differentiation in international human rights law between nationals by birth and nationals who have gone through the naturalization process and has noticed that, for States, deprivation of citizenship acquired by naturalization is often much easier than deprivation of citizenship acquired by birth or otherwise. As evidence for this, for example, deprivation of citizenship as a result of fraud is applicable only to naturalized citizens. Consequently, it is clear that where safeguards to prevent deprivation of citizenship resulting in statelessness are present, terrorist nationals of dual citizenship are more vulnerable to deprivation than those with a sole citizenship. A state can have a citizenship deprivation act compatible with international human rights law as long as it concerns terrorist nationals with dual citizenship. Although there is no outright ban on revoking the citizenship of dual nationals there is, however, at the very least procedural obligations that States must carefully consider. On the other hand, international human rights law permits States to deprive individuals of their sole citizenship, so long as the requirements of the 1961 Convention are satisfied.

Finally, this paper does not argue that states should adopt a particular stance towards citizenship law to comply with their IHRL obligations. It rather presents the case that the existence of national deprivation of terrorist nationals is not to be avoided and the deprivation practice has in recent years become a serious concern and it is not only an exception or a random event, and that this in turn has particular important consequences for IHRL and the understanding of citizenship and statelessness. Notwithstanding the fact that at the time of the drafting of the conventions on citizenship, the domestic legislation of many States permitted denationalization on several grounds, it was agreed to envisage a list of circumstances authorizing deprivation even where that would render an individual stateless. Among the listed exceptions, Article 8(3)(a) makes reference, in particular, to acts of disloyalty and conduct seriously prejudicial to the vital interests of the State. Such an exception, covering acts like treason, espionage as well as terrorist acts, can, however, be invoked only if it is an existing ground for deprivation in the internal law of the State concerned, which, at the time of signature, ratification or accession, the State specifies it will retain.

References

Adjami, Mirna & Harrington, Julia (2008). “The Scope and Content of Article 15 of the Universal Declaration of Human Rights.” Refugee Survey Quarterly 27.3. pp 93-109.

Alice, Edwards (2014). ‘The Meaning of Citizenship.’ Cambridge University Press Print. pp. 11-43.

Arendt, Hannah (1994). The Origins of Totalitarianism (New York, Harcourt Books). 28 p.

Cloots,Elke (2017). The Legal Limits of Citizenship Deprivation as a Counterterror Strategy. Volume 23 / Issue 1. pp. 57-92.

Batchelor, Carol A (2006). Transforming International Legal Principles into National Law: The Right to a Citizenship and the Avoidance of Statelessness, Refugee Survey Quarterly, 25: 3. pp 8-25.

Bilgram, Lisa (2011). International Law and European Citizenship Laws. EUDO Citizenship Observatory. 29 p.

Cassese, Antonio (2005). International Law. Oxford University Press. 612 p.

Chan, M. M. Johannes (1991). The Right to a Citizenship as a Human Right, 12 Human Rights L. J. 1. 20 p.

Donnelly, Jack (2003). Universal Human Rights in Theory & Practice 10, 2d, 10.

Dowding, Ryan and Mckeon, Charles (2016). Criminal and Administrative Measures against ‘foreign terrorist fighters. Human Rights Law Clinic Papers. 31 p.

Goethem, Henk, Van (2006). ‘A few legal observations pertaining to citizenship’, Armenian Journal of Public Policy, special issue.

Kingston, Rebecca (2005). The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France, Journal Citizenship Studies Volume 9, 2005 – Issue 1, 9:1. pp. 23-40.

Kraehenmann, Sandra (2014). Geneva Academy of International Humanitarian Law and Human Rights, Academy Briefing No. 7, ‘Foreign Fighters under International Law’. 69 p.

Macklin, Audrey (2014). The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? Robert Schuman Centre for Advanced Studies EUDO Citizenship Observatory. 65 p.

Malet, David Samuel (2009). Foreign fighters: Transnational identity in civil conflicts. 322 p.

Mantu, Sandra (2015). Citizenship in times of terror: citizenship deprivation in the UK. Centre for Migration Law. 20 p.

Mendelsohn, Barak (2011). Foreign Fighters—Recent Trends, Orbis Journal of Foreign Affairs, Vol. 55, No. 2. pp. 189-202.

Pocock, J.G.A.  (1995). The Idea of Citizenship since Classical Times, in R. Beiner (ed.) Theorizing Citizenship, State University of New York Press. 15 p.

Spiro, J. Peter (2013). “Expatriating Terrorists”, Fordham Law Review. 20 p.

Sykes, Patrick (2016). Denaturalisation and conceptions of citizenship in the ‘war on terror’, Citizenship Studies, 20:6-7, DOI: 10.1080/13621025.2016.1191433. pp. 749-763.

Travalio, Greg and Altenburg, John (2003). “Terrorism, State Responsibility, and the Use of Military Force,” Chicago Journal of International Law: Vol. 4: No. 1. pp. 1-25.

Trindade, Cançado, Antônio Augusto (2008). Universal Declaration of Human Rights. 5 p.

UN- United Nations (2011). Human rights and arbitrary deprivation of nationality, Report of the Secretary-General, 16 p. (A/HRC/19/43).

UN- United Nations (2000). Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, Report by the Secretary-General. 17 p. (A/70/330)

van Waas, Laura (2008). Citizenship matters, Statelessness under International Law. School for Human Rights Research Series, Volume 29. 503 p.

van Waas, Laura (2016) Foreign Fighters and the Deprivation of Citizenship: National Practices and International Law Implications, in A. de Guttry et al. (eds.), Foreign Fighters under International Law and Beyond, pp. 472-475.

van Waas, L.E. van (2012). Fighting statelessness and discriminatory nationality law in Europe. European Journal of Migration and Law. pp. 243 – 260

Vela, María José Recalde (2014). How far has the protection of the right to nationality under international human rights law progressed from 1923 until the present day?. Tilburg University, Understanding Society, 112 p.

Weis, Paul (1979). Citizenship and Statelessness in International Law, Kluwer Academic Publishers Group, Dordrecht.

Weissbrodt, David and Collins, Clay (2006). The Human Rights of Stateless Persons, 28 Hum. Rts. Q. pp. 245-250.

Democracy, Human Rights and the UN-Human Rights-Based Approach

Introduction

Democracy and human rights are universal aspirations and ideals which governments that claim to be legitimate should always respect. This is why the United Nations and its members commemorate December 10 as Human Rights Day and September 15 as the International Day of Democracy. While both are considered by the UN as “interdependent and mutually reinforcing”[1], they are also the subject of controversies which are complex, multi-faceted and politically sensitive.

There are scholars who feel that the emergence of the international regime of human rights, linking human rights to democracy, has weakened the pre-existing ideological divide by conditioning governance to the requirements of human rights. This has been the case especially since the UN developed the Human Rights-Based Approach (hereafter HRBA), urging member-states to use this approach in the pursuit of political goals, such as development and good governance. Scholars who used to stubbornly defend this or that ideological school of thinking are now prepared to be flexible and accept the validity of human rights which were not tolerated traditionally by their ideological camps, such as the rights to health or education and minority rights. However, many others have remained in their ideological barracks, criticizing or belittling the UN approach to human rights and democracy because it deviates from their ideological orthodoxy.  These scholars may never surrender until and unless the contours of international human rights law are perfectly aligned to their own ideological doctrines.

Many other scholars have preferred to watch from the sidelines as HRBA takes root. Their silence has created a wide gap in the academic literature where contributions are most needed. Academic contributions on HRBA which come after it is fully developed will still be welcome, especially for those interested in history. However, timely commentaries can make valuable contributions to debates around the direction democracy and human rights are taking. It is bearing this in mind that this contribution is made.

The importance of this subject-matter hardly needs explaining. In 1998 the UN adopted the Declaration on Human Rights Defenders, encouraging the promotion of human rights awareness, and affirming the rights of individuals to be concerned with human rights and to claim their rights. In effect, this instrument lays the foundations for the measurement of democracy based on application of the HRBA from below. In response to this, and in the interest of critically assessing the broader political implications of this approach, the academic world should share its intellectual insights rather than lagging behind. Scholars should feel free to express their own views, including those which further particular economic, social and political interests. This is, in fact, what most of them do, defending their respective beliefs in the name of justice, even though their conclusions are hardly reconcilable. Still, it is better for scholars to make contributions, rather than leaving questions relating to human rights and democracy to be shaped by political actors to meet their needs.

At the core of the debate on the discourse on human rights and democracy is the question of who the human being (the self) really is and how s/he relates to or should relate to society and the state. The philosophers who previously devoted their lives and emerged to answering these questions now rest in peace, after agreeing to disagree with one other, leaving their followers intellectually restless. The ideological camps that have gradually emerged are not only numerous, but also tolerant of multiple interpretations, thereby blurring the landscape. This is why we see all kinds of shades of opinion within liberalism or neo-liberalism, Marxism or neo-Marxism, Social Democracy, Communitarianism etc. Less colorful, more focused and relevant to the real political world is the approach used by global political organizations, such as the UN. Their positions are widely accepted for the simple reason that they are products of a broader political consensus, which accommodates the diverse views of experts from different fields.

What makes the UN approach legitimate is the existence of a legal mandate to promote human rights as stipulated by paragraph 3 of article 1 paragraph 3 of its Charter. Using this mandate, this organization has adopted a long and impressive list of international human rights instruments which have been widely ratified by its member-states. The contents of some of these human rights instruments concern democracy, directly or indirectly, as will be shown later. The compliance by state with the undertakings assumed under these international instruments is monitored by a number of international bodies using a range of different methods, for example by considering reports and petitions received, or by tracking the progress mad. Obviously, there is a long way to go before this international regime of human rights achieves its goals. However, no one can seriously question that the UN has reached a milestone by developing this international regime, thereby making the world a more humane place than before.

When it comes to the promotion of democracy, per se, the contributions of the UN are often belittled by those who are displeased by the apparent neglect of the views of their own ideological camp. In fact, much was achieved, especially considering that the organization was prevented during the pre-Cold War period from engaging in what was deemed to fall under the domestic jurisdiction of states by paragraph 7 of article 2 of its own Charter. It is also important to remember that there was no consensus around which political system served democracy best. Was it that of the U.S. in the 1950s, which excluded blacks and women from political participation? Or the Swiss confederal model, which did not permit women to vote until the 1970s? Or that of the socialist states in the Eastern bloc, which disregarded political rights?

Leaving this aside, the UN has played a crucial role in developing the rights of peoples, by elaborating the contents of these rights, e.g. the rights to self-determination, social progress and to development. These clarifications were significant for democracy since they concern both peoples (the demos) and good governance (the kratia). This approach addressed democracy head-on, and not only from a theoretical perspective. Decolonization was advanced by applying the Charter principle on the right of peoples to self-determination. The system of Apartheid in South Africa was confronted. Arbitrary usurpation of power was denounced in many countries, and the UN began to monitor elections in post-conflict situations or where there were serious political disputes. The support which it gave and still gives to the promotion of gender mainstreaming, empowerment and participatory rights also concern democracy.

The collapse of the Socialist regimes in the former USSR and its Eastern European allies, who were the staunchest defenders of state sovereignty, removed one of the most serious hurdles to the promotion of democracy. The UN capitalized on this political development to raise the banner of democracy, which gained prominence on its agendas. The 1993 Vienna Declaration of Human Rights made abundantly clear that “(t)he international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.”[2] This document linked democracy to “the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.”[3] Within a decade or so, HRBA was developed. Initially, this approach was recommended as a tool for application in the promotion of economic development. However, gradually its use was extended to other areas, for example, to health, child welfare, gender mainstreaming etc. Although the UN maintains that it does not advocate a single model of democracy[4], one can wonder if the HRBA which it uses is not one such model, since it promotes a bottom up approach to politically sensitive questions including the question of what constitute sound governance.[5]

Proceeding from the above, this study examines the road map used by the UN in developing and promoting human rights and democracy, and how it urges its members to conduct themselves by applying HRBA. The questions which guide this study are clear-cut. Is there a UN perception of democracy? If so, what is the position of this organization regarding the contested ideological positions concerning who the individual self is, and how this person relates or should relate to society and the state? Has the UN’s position discredited or sanctioned the views of this or that ideological school of thought? What are the consequences of relying on HRBA to promote democracy? Will this reliance promote democracy in form, as well as, in substance? Will it empower the victims of oppression and marginalization, thereby ending despotism, oppression and bad governance once and for all? What are the wider political consequences and implications of using this bottom-up approach? Will it lead to the fragmentation of multi-ethic and multi-national states by making them ungovernable when the voices of the marginalized are heard? Will states reject HRBA because of fears that it will lead to the destabilization of their governments?

Since there are conflicting viewpoints concerning how democracy should be perceived and applied, this paper will not use a particular theory to guide this study. What is attempted to see how and where the UN is heading. This requires relying on the materials used by this and other international organizations. This is why the answers to most of the questions posed above are obvious from how the provisions of the different international human rights instrument have been formulated. However, before examining these documents and the UN approach to democracy, it is necessary the ideological controversies surrounding the concept, and how it evolved historically. Only then will one be able to judge the extent to which the UN followed its stated approach, based on the promotion of human rights.

Conceptual clarification 

Democracy, as was pointed out earlier, is praised and aspired to across the globe while at the same time being controversial. This is one reason why varied forms of democracies are found, whose goals and activities are often at odds with one another. Take, for example, ‘the Western model’, which is known as liberal democracy. This model is supposed to guarantee individual political rights (freedom of expression, association and assembly), universal suffrage, a free media, and the multi-party parliamentarian model of governance based on the division of power (with checks and balances). However, the systems of governance in Italy, France, the United States and Denmark are far from being the same. The model that has been adopted in some of the Eastern European states, such as Hungary and Poland, is criticized and referred to illiberal democracy, ‘low intensity’ or ‘empty’ democracy because there are restrictions on individual civil liberties and the free media. If the attack on the media makes democracy illiberal then the U.S. is also heading in this direction since President Trump regards the media as the enemy of the people, except for a few extreme right-wing media outlets. Before the demise of the Socialist order in Eastern Europe and USSR the labels most commonly used by the Soviet bloc countries were proletarian democracy or people’s democracy. In the Nordic countries the phrase social democracy is used to describe their welfare system, which is financed through higher taxation.

Even within a single country, we can see the bewildering variety of ways the word democracy is used. Sweden, for example, was governed during the last few years by a coalition led by the Swedish Social Democrats. The opposition camp included the Christian Democrats and the Swedish Democrats. Although the Swedish Democrats are supported by about 17% of the electorate, the party has been ostracized by all the political parties because of its racist roots. Adding more confusion to this, scenario, a new political party called simply The Democrats has just come to prominence in the Gothenburg region by securing 17% of votes in municipal elections. All this may well make Swedish citizens wonder who the true democrats are.

Dictionaries define democracy in a variety of way, reflecting the divergent ways the term is understood in the real political world. Dictionaries that fail to do this or that tell only one side of this perplexing story run the risk of being criticized for being ideologically biased. This is why we find this term defined in different ways, reflecting the political mess in the real world. According to dictionary.com (Thesaurus), it can mean “a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system” or “a state of society characterized by formal equality of rights and privileges.”[6] Cambridge Dictionary re-affirms this and underscores further the importance attached to the expression of opinions and that government should be elected.[7] Likewise, in Merriam-Webster we read that this term describes a system of “government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[8]

These and other similar broad and varied definitions of democracy raise more questions than they answer. Does this term mean self-rule by the people collectively, as a group, where all the members of the community have equal voice and are the beneficiaries of this rule? Or does it mean majority rule? Does it require nothing more than the presence of political institutions that allow the electoral system to function and ‘formal’ equality? For example, does the fact that the political system restricts voting rights to men only or to certain racial groups mean that there is no democracy? What about if the country does not respond to the needs of the people, e.g., by denying people economic and social rights? Should the political system promote real equality and a fair distribution of resources? Because these questions are answered in so many different ways Susan Marks correctly remarked that that“democracy appeared to mean everything, and therefore nothing.”[9]

One way of understanding democracy would be to examine the toot of the word itself, i.e. ‘dēmo’’, which means ‘people’, and ‘kratia’, meaning authority or rule, in Greek.[10] When juxtaposed these two words convey the idea that the inhabitant of a territory govern themselves by exercising political power or have a say in the affairs of governance. Ancient Greek cities, such as Athens and Sparta, are believed to have practiced dēmokratia.  Aristotle listed many other examples when he wrote:

At Marseilles the oligarchy became more constitutional, while at Istrus it ended in becoming democracy, and in Heraclea the government passed from a smaller number to six hundred. At Cnidus also there was a revolution… Another case was at Erythrea, where at the time of the oligarchy of Basilidae in ancient days, although the person of the government directed affairs well, nevertheless the common people were resentful because they were governed by a few, and brought about a revolution of the constitution”.[11]

Over the years, these experiences of the Greek city-states inspired many political communities to emulate them. In the late 18th century, the American and French Revolutions raised the banner of democracy with the aim of ending despotism and replacing it with a democratic system. What distinguished their experiences from those of the ancient Greeks were the justifications used to legitimize the political system and the structures that were created to ensure its continuity, e.g., through a system of division of powers, the codification of right and respect for the rule of law. The American Declaration of Independence sets out what are claimed to be ‘self-evident’ truths by underscoring the belief:

that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”[12]

When the French revolutionaries brought to an end the despotic feudal regime of the House of Bourbon, they proclaimed in their Declaration on the Rights of Man and the Citizens that “men are born and remain free and equal in rights” and that the goals of political association should be “the preservation of the natural and imprescriptible rights of man”.[13] Subsequent constitutions of the French Republics included a commitment to respect the principle of “government of the people, by the people and for the people.”[14]

Like the proponents of democracy in ancient Greece, the American and French revolutionaries claimed to have empowered the people by giving them self-rule. Unfortunately, this is often misinterpreted as meaning the total empowerment of all members of the political community (the people), so that they become the full beneficiaries of the political system. This is far from true. The democratic experiments in Istrus, Heraclea, Cnidus, Erythrea and Basilidae, which Aristotle wrote about, did not permit all the members of these communities to participate in the political process (children, women and slaves, for examples, were excluded).[15] In fact, Aristotle clearly stated that some people were slaves by nature, and lacked the necessary capacity to rule, and therefore it was advantageous for them to be ruled by the free people. Despite this obvious exclusion from power, the political system was called democracy, apparently because it was expected that those who were empowered by the system would promote the interests of the community as a whole, e.g. by sharing what the system has given them.

One can draw a parallel with the democracy which was promised by the American and French Revolutionaries at the end of the 18th century. The ‘American people’ emerged as a legally and politically constituted entity and were promised a democratic order. Yet those who held power were ‘white men’. Before slavery was abolished in the 1880s black slaves were deemed to be the property of their white owners. Many of the celebrated fathers of the American Revolution and democracy, such as George Washington and Thomas Jefferson, were themselves slave-owners. White women too were marginalized and excluded from positions of power until the mid-1960s. Even the American Indians that had treaty relations with the United States were disempowered for years, despite the fact that they were formally acknowledged as ‘domestic sovereign entities’.

The French Republics which were established following the French Revolution also failed to deliver the democracy that had been promised, until after World War II. The ‘French people’ was recognized as a single political entity but power was in the hands of French white men. Although the 1879 French Declaration recognized ‘the rights of man’, the French slaves and the colonial peoples remained excluded from power despite being regarded legally as members of the French community.

The ‘people’(‘dēmo’’) and its ‘authority’ (‘kratia’). Without knowing who ‘the people’ is and what is the nature of its authority, it is difficult to know what democracy means. Is this people composed of all the persons that are present in the country, including foreign residents and tourists, or only the citizens (wherever they may be), or selected categories of citizens (e.g. only men)? Is the power or authority of this people simply to choose who should rule, regardless of whether the chosen ruler is a tyrant or one who responds to the wishes and needs of the governed? In other words, does democracy empower the people to rule itself through elected representatives who can be removed if they fail to respond to what the electorate wants and expects?

The term ‘people’, in everyday usage, describes a collection of individuals. The term is commonly used to describe a particular social group by combining it with a social, territorial other factor.[16] Examples of this include the description of those inhabiting particular territory, as ‘Hill People’, those living in the countryside, as ‘rural people’, those who speak the same language as the ‘French-speaking people’ or the ‘Arabic-speaking people’ (the whole north Africa), or those who profess the same religion, as ‘the Jewish people’ Whichever classification is used, the term ‘people’ groups together large number of individuals as a an entity sharing particular characteristics.

When used in the technical sense for legal or political purposes, ‘people’ identifies a legally organized political community. The glue which unifies the individuals as an entity here is not necessarily a common language or religion or territory, but a political and/or legal identity. This means while people in a society can be divided according to the languages they speak, the religions they profess and the territories they inhabit, legally they constitute one entity. Examples of this include references that are made to “the American people”, “the German people”, “the Swiss people” or “the French people”. The French-speaking “people’ is not the same as “the French people” since the former embraces French speakers in parts of Belgium, Switzerland and Canada. “German-speaking people” is broader than the “German people” because the German language is spoken Germany, Austria and parts of Switzerland.

Appreciating this distinction, dictionaries acknowledge that the word ‘people’ also means “a political community”[17] or “any consolidated political body”[18] or “the entire body of those citizens of a state or nation who are invested with political power for political purposes.”[19] Likewise, philosophers, jurists, political scientists, and other scholars also use ‘people’ as a code word, to mean  a “body of the citizens”[20] or “a public family or nation (gens, natio) whose members are all related to each other as citizens of the state”[21], or simply as ‘the “aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or of different colour.”[22] Not surprisingly, we see the plural form of this term in use as “peoples”, as stated in paragraph 2 of article 1 of the UN Charter which deals with the self-determination of peoples.

Understood in this unique technical sense, a people can be very young, e.g. “the people of South Sudan” which came into existence eight years ago, or over three hundred years old, like “the American people” which dates from in 1776. Two distinct peoples can merge, example as the East and West German peoples did following the fall of the Berlin Wall, and one people can split into two or more new political communities, as occurred in Yugoslavia and the USSR. Again, a people can also exist for well over a thousand years. The fact that no human being can live that long makes no difference. Grotius clarified the distinction that should be borne in mind between the lives of these kinds of imagined political communities and those of their members by stating the following.

(I)n comparing a river to a people, Aristotle said that rivers bear the same name, though different water is always replacing that which is flowing on. Again, it is not an empty name merely that remains, but ‘the essential bond’, which Conon defines as an ‘inherent bodily character’, Philo as a ‘spiritual bond’, and the Latins as a spirit.”[23]

If the existence of a people as a political community is not indisputable, a question which follows from this is how can this people govern itself as suggested by the term democracy? Does this necessarily mean that the voice and interests of all the members of this political community should count? Responding to this question, John Mills wrote:

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised … The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority…[24]

This honest statement exposes the hypocrisy surrounding those who brag about behaving in accordance with the principles of democracy. If democracy is the rule of the people as a whole, government which responds to the interests of a minority or a majority cannot be democratic. To argue otherwise is false or, in everyday language, a lie.

Governance.If the term people (the demo) in democracy relates to an organized socio-political entity, what is its authority or rule (‘kratia’) when speaking of democracy? There are two ways of seeing this. One is to say that if sovereignty belongs to the people, power can only be delegated to the government. This means that the governmental authorities are mandated to serve as representatives, to act by responding continuously and transparently to the wishes and interests of the people. The other interpretation reduces democracy to the means of legitimizing the government. Once the people has chosen the government those elected should represent the state by exercising the sovereignty of the state. They can do this by promoting the interests of the majority or of a minority or minorities or those of the whole people as they see fit. Until its period in power is over, the government in charge does not have to step down just because there are people that are not pleased by how the country is governed. Whichever stance one takes, it is difficult to avoid ideologically charged questions regarding the rights of the members of the political community, and the justifications for these rights. While a deeper discussion of this topic is beyond the scope of this contribution, it would be a mistake to ignore it altogether in any discussion of democracy and human rights.

 The discourse on human rights and democracy

The debate on human rights and democracy is very old, complex and linked to the kinds of political interests which deserve to be protected. The main aim here is not to attempt to disentangle all the thorny but merely to highlight the dominant positions as a backdrop for an examination of where international human rights law stands on this matter. The two most contested issues relate to (i) what is meant by ‘the will of the people’ and ‘the government of the people’ when speaking of democracy; and (ii) how individuals relate to this ‘people’, and the state. These questions cannot be answered without opening up a Pandora’s Box of many other controversial questions. For the purpose of this paper, the debate can be narrowed down to one between the individualist and collectivist approach to rights. What are the justifications for the rights of individuals, what limitations are or should be imposed on them, and how do they apply to individual as member of broader social groups inside political communities? Defenders of the rights and interests of the community maintain that since individuals are product of their communities their rights and freedoms should be subordinated to the rights, interests and needs of their communities. Most individualists reject this position and question the very existence of the community or society as a separate entity that is more than the sum of its members.

Whichever stance one takes (individualist or collectivist) in order to defend democracy, there is no escape from the requirement to justify why rights should be recognized in the first place. In other words, what are the foundations for the rights which are used as the bricks for building and sustaining the desired form of democracy? Defenders of Natural Law, positivism and other sources of rights have wrestled with this question, which brings to the surface seemingly intractable questions regarding the nature of the human being. Are humans social, humane and rationale, or self-centered, autonomous and evil beings, who should be tamed to conform to social requirements? Can democracy co-exist with individualism? Should the majority impose its will over the rest in the name of democracy? Is democracy merely the presence of a social contract whereby the governed choose who should rule? Should the governed have a say on how the government rules? These questions have been answered differently by scholars.

The theory of social contract has been advanced by different philosophers in the interests of the governed, even though the way it is formulated has varied considerably. Thomas Hobbes (1588-1679) used this theory to legitimize the rulers and the suppression of ‘natural rights’. He was praised for having recognized the ‘existence’ of natural rights which entitle the individual to defend his life and interests on the basis of his own judgment.[25] However, because the exercise of these rights leads to “war of all against all” (Bellum omnium contra omnes) Hobbes called for their renunciation in the interest of the common good. This was justified because we are not social(like bees) but individualistic, egocentric, jealous, evil beings who constantly struggle for power and dominance.[26] This being the state of nature, the only way out from the ‘war of all against all’ is for people to surrender their natural rights by choosing the ruler (a king or an assembly) who governs by suppressing natural rights in the interest of peace and the common good. If the ruler fails to achieve this, the people should choose a different ruler.[27]

This Hobbesian formula advocates a government which is chosen by the people and for the people but is notof the people. The idea of social contract is used merely to legitimize the government and to disempower the governed in the conduct of the political affairs of the community. In other words, this is not democracy in substance. The despots of that time ridiculed Hobbes’s recognition of natural rights and the idea of a social contract, whereby people would be free to choose and change who ruled them. However, they liked his endorsement of despotism, which is why Hobbes earned the title of apologist for tyranny.

Like Hobbes, John Locke (1632-1704) and Immanuel Kant (1724-1804) recognized natural rights and supported the idea of a social contract theory. However, they did not use it to justify despotic form of governance. Both rejected Hobbes’ negative view of the ‘state of nature’ of mankind. According to Locke, ‘the war of all against all’ that Hobbes wrote about arises not from the evil nature of mankind but from disregard for the Law of Nature.[28] It was this unfortunate condition which led to the need for civil government in the first place, i.e., as a “remedy for the inconveniences of the state of Nature”.[29] The purposes of civil societies should therefore be to preserve the natural rights of the citizens, such as life, liberty and property.[30] When a government fails to protect these natural rights, the people should be able to remove and change it.

Immanuel Kant also dismissed Hobbes’s negative view of the state of nature and the notion of war of all against all “as if there could have been no other relation originally among men but what was merely determined by force…”[31] The goals of establishing civil union should not be to ensure the destruction of natural rights but to strengthen them “by laws of right.”[32] The Kantian formula of social contract for governance asserts “the right of every citizen to have to obey no other law than that to which he has given his consent or approval …civil equality… (and) … the right to owe (one’s) existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth…”[33] These thoughts of Locke and Kant were highly praised by many, especially by liberals and libertarians, who later used them to justify the establishment of a democratic political order which strengthens individual rights and limits to the powers of the government.

Jean Jacques Rousseau (1712-1778), who lived during the same period as John Locke, also defended both natural rights and the principle of social contract. “The people, being subject to the laws, ought to be their authors,” he wrote, “the conditions of the society ought to be regulated solely by those who came together to form it.”[34] He too dismissed the negative picture of the state of nature which Hobbes had painted. According to him, social life promotes morality and the values of humanity even if it is not always easy to suppress individual selfishness and anti-social behaviors. The individual should not be allowed to undermine the interests of the broader community. Individual rights and freedoms should be subordinated to those of the community. As he puts it, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free”[35] This earned him the title ‘Communitarian’.

For Karl Marx (1818-1883), the human being is a social being whose vital expression is nothing but “an expression and confirmation of social life.”[36] By nature, man was not evil, as Hobbes maintained, but is good and social. However, men had been poisoned by the system of private property, which had reduced each individual to nothing more than a ‘representative of property’. Human essence exists only when there is existence for one another “as the vital element of human reality”.[37] This kind of social existence makes society“the perfected unity in essence of man with nature” or “the realized humanism of nature”[38], rather than something dissociated from individuals that comprise it. Marx argued that the social contacts proposed by the writers such as Hobbes, Locke, Kant and Rousseau cannot resolve the political problems and conflicts arising from social relations based on the appropriation of private property. The ‘war of all against all’, which Hobbes wrote about, was the class war.

Karl Marx dismissed some of the French and American revolutionary slogans, such as, liberty, security, freedom, and equality, as both empty words and deceptive. These ideals cannot be realized in a political community which relies on private property. As he argued:

The liberty we are here dealing with is that of man as an isolated monad who is withdrawn into himself. The right of man to freedom is not based on the association of man with man but rather on the separation of man from man… The concept of security does not enable civil society to rise above its egoism…[39]

The “rights of man” which the philosophers of the late 18th century defended were denounced by Marx because they protect the selfish interests of the bourgeoisie and tear human beings apart from their communities. Even if they appear appealing in theory, “not one of the so-called rights of man goes beyond egoistic man, man as a member of civil society, namely an individual withdrawn into himself, his private interests and his private desires and separate from the community.”[40]

The electoral systems established after the French and American Revolutions were belittled by Karl Marx. In his opinion, the deputies that were elected could only serve as a rubber stamp for advancing the ‘particular’ class interests of the ruling class.[41] It was impossible for the deputies to act otherwise since “the politeness ceases as soon as privilege is menaced.”[42] Still, unlike his ideological colleague, Engels, he did attach some value to the electoral system to the extent that the workers could exploit it to speed up the demise of the political system.[43] However, in his view, emancipation of the oppressed class could only be achieved by transforming “the affairs of the state into the affairs of the people”.[44] This means nothing less than dissolving the old society by overthrowing the ruling class “on which rested the power of the sovereign, the political system as estranged from the people. The political resolution is the resolution of civil society.”[45] Besides encouraging the proletarian class to rise up to this end, Marx and his ideological compatriots and followers (F. Engels and V. I. Lenin) also supported, as legitimate, the struggle of historically constituted sociological nations to secede from oppressor nations and to establish proletariat nations.[46]

The flood of literature which is inspired by the above-mentioned thinkers and others before and after them is often categorized under various schools of thinking, such as Marxist and Neo-Marxist, liberal and Neo-Liberal, Libertarian, Communitarian, traditionalist and many others. Although writers sometimes resent being compartmentalized in this way, these labels will be employed in this study as they are used in the general literature to make it easier to understand who belongs to which position in the debate relating to human rights and democracy.

Liberals and libertarians are the champions of individual rights and freedoms and question the legitimacy of collective and group rights. The latter are defended by Communitarians, socialists and social democrats. Having said this, care should be taken to avoid generalizations, since we find various shades of thoughts within each school of thought. This is why it is important to examine the formulations used by each writer before passing judgment on the democratic formulas defended by each school of thought. Having said this, for purposes of simplifying this complex debate this paper has chosen to divide them between two camps, namely those who defend normative individualism and those who are behind collectivism.

The thought of Ayn Rand, one of the most celebrated libertarians, can be used as an example of how most of the defenders of normative individualism think.  For Rand, the best political system to live under is “a full, pure, uncontrolled, unregulated laissez-faire capitalism.”[47] This is because the system protects individualism by stimulating the pursuit of the selfish interests which she valued so highly. She rejected the existence of collective entities, including “– society,’ since society is only a number of individual men”.[48] She despised collective morality, such as solidarity and altruism because they lead to “renunciation, resignation, self-denial, and every other form of suffering, including self-destruction”[49] and ultimately bring “the morality of death.”[50] Put bluntly, “if civilization is to survive,” she wrote, “it is the altruist morality that men have to reject”.[51] Instead of ‘public morality’ she believed in the merits of individual morality, to be used as “the means of subordinating society to moral law”.[52]

Rand maintained that the sources of these kinds of individual rights, liberties and freedoms “is not divine law or congressional law, but the law of identity.”[53] Rights, for her, represented “the property of an individual” and “society as such has no rights”, thus “the only moral purpose of a government is the protection of individual rights”.[54] She was well aware of the claims of those who regarded themselves as collective entities and who were demanding rights or protection but rejected their claims. “A group, as such, has no right”, she wrote, and individuals who claim to exist as collective entities are nothing “but a gang or a mob”.[55]

This rejection of community led Rand to question the role of government in promoting the wider interests of the society or in protecting marginalized groups. This was in part because this protection requires using revenues that are derived from taxing others (which she called ‘robbery’). She strongly rejected the use of tax revenues to provide benefits under the pretext of promoting the right to work, health services and standards of living. As far as she was concerned:

“There is no such thing as ‘a right to a job’ …(but) a man’s right to take a job if another man chooses to hire him. There is no ‘right to a home’.. ‘rights’ of special groups … There are only the Rights of Man.”[56]

For her, the only legitimate rights were individual, civil and political rights, with the exception of property rights which are “man’s only ‘economic rights’”, and the only rights that deserve to be called political rights.[57] Leaving this aside, there are “no ‘economic rights’, no ‘collective rights,’ no ‘public-interest rights’.”[58]

Liberals[59], like libertarians, applaud normative individualism because it protects the rights of the individual by disregarding the collective needs of the members of the community. This is justified on the grounds that the individual is “the primary normative unit” of society and the state. Jack Donnelly, for instance, remains convinced “that only individuals can have human rights” and therefore opposes group rights.[60] According to him, society and the state are constructed by individuals for the promotion of their interests. “Human rights are morally prior to and superior to society and the state,” and can only belong to individuals “who hold them and may exercise them against the state in extreme cases.”[61] Donnelly accepts that the individual “is a social animal”, whose personality and potentials are “developed and expressed only in a social context”, which is why society discharges “certain political functions” through its political organization (the State).[62] Because of this, individuals do have duties towards society.[63] However, when tension emerges between the interests of the society and its individual members, the conflict should always be resolved by giving priority to the wishes interests of the latter. “For the liberal,” wrote Donnelly, “the individual is not merely separable from the community and social roles but specially valued precisely as a distinctive, discrete individual – which is why each person must be treated with equal concern and respect.”[64] This distinctive existence, according to Donnelly, legitimizes the rights of the individual to enjoy the “liberty to choose and pursue one’s own life”, including by exercising those familiar civil and political rights known as “rights of man”.[65] This reduces democracy to a form, which is an end in itself, i.e. for legitimizing government, rather being self-government by the people for the welfare of the community, including marginalized social groups etc. “The democratic component of liberal democracy”, stated Susan Mark, “comes to revolve, principally, around elections.”[66]

There are Liberals who seek to give democracy substantive meaning by accepting the importance of promoting some collective interests of the community. Donnelly, for example, refers to the legitimacy of economic and social rights, such as the rights to food, health care and social insurance, and hence the role of the “society” in providing basic services such as “health care or universal material benefits”.[67] This, according to him, also distinguishes him from John Locke, whom he criticized for failing to address key development issues.[68] The democratic formula which Donnelly supports therefore responds not only to the rights of the individual, but also to a certain extent to the needs of the community in the interest of justice.[69]

Will Kymlicka also moves the compass of liberalism closer to what matters for the marginalized and the common good. To defend this within the framework of liberalism he focuses on “a liberal theory of community and culture”.[70] As he sees it, membership of cultural groups “gives rise to legitimate claims, and some schemes of minority rights respond to these claims”.[71] According to him, protection of individual rights should not be perceived as necessarily leading to confrontation or tension within society. The members of the community are, after all, not separated from their groups since there are ‘bonds of mutual respect” which motivate individual members to act responsibly and to “successfully pursue their understandings of the good.”[72] This is how different groups of people have always co-existed and how they freely pursue “their shared communal and cultural ends, without penalizing or marginalizing those groups who have different and perhaps conflicting goals.”[73] This approach to normative individualism brings this school of thinking closer to the community by reminding government to be cautious in responding to the needs of the members of the national community. It also deviates from those who maintain that “(T)he language of rights has to be used with great care when is applied to groups”.[74]

Communitarians dismiss Liberalism as a misleading ideology because it distorts who the self is and how social relations work. Michael Walzer calls this ideology an ‘incoherent’ and “a self-subverting doctrine” which cannot be reconciled with reality. The reality which Communitarians recognize manifests the presence of social bonds, values and loyalty to family, relatives, neighbors, friends and co-workers. Liberalism, according to Walzer, denies all this as if the individual exists in a vacuum and as if there is no community, no Jews, blacks, Catholics, religious organizations, etc.[75] Brian Lee Crowley relegates Liberalism to the sphere of an intellectual exercise that is in conflict with the real world.[76] According to him the self is shaped by social forces, i.e., the community, language, culture, history etc. These social forces enrich the self, endowing it both with morality and roles and responsibilities. He dismisses the Liberal’s ‘universal’ self as a one dimensional ‘faceless’ being who resembles a shadow, or even an inanimate object.[77] “The liberal social order”, he states, “finds its justification in a realm of abstraction quite separate from the concrete and contingent.”[78]

The self emerges in the real world, according to Crowley, from a social context, as a byproduct of complex processes of nurturing, training, relationships and attachment. These relationships “are partly constitutive of who we are, and to that extent our reflection on, and reasoning about, that part of our deeper self will entail the ‘coming to self-awareness of an intersubjective being’, whose boundaries transcend those of the individuals it comprises.”[79]

This contextual self-awareness comes with social roles and social responsibilities which are linked to religious, cultural, national, professional and other requirements. Compliance with these expectations is not perceived by the self as something that is done for ‘others’, but for ‘us’, and hence for ‘me’ since the self is gratified by what it discharges for ‘us’ and is aware of the reciprocal services. The fusion between ‘me’ and ‘us’ is best explained by what MacIntyre calls ‘our moral particularity’, which derives from our particular social identity. This is why when the individual describes himself he brings others in the picture by stating:

I am someone’s son or daughter, someone else’s cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations.”[80]

This description reflects ways of life that still exist in many developing countries. Here, individuals are often identified as “son of x or y” or as ‘the person from this or that community or village”. Even in the Western countries this survives in family names, such as Abrahamson or Johansson, meaning son of Abraham or Johan, or Kristbjörnsdóttir, meaning the daughter of Kristbjörn. These kinds of identifications used to bestow social benefits or disadvantages depending on the reputation of the person or family whose name is used. This approach to the understanding of the selfreveals the interactive and reflective nature of the individual. It shows that the individual is not as isolated and independent as s/he appears from the outside but “a being emerging out of a dense social ground” with fluid character, “rough edges and ill-defined boundaries.”[81]

Conclusion relating to the discourse on human rights and democracy

The conflicting approaches used to the understanding of the nature of the human being (the self) and how s/he relates (or ought to relate) to society and the state, have led scholars to endorse varied forms of government. Of these, democracy is clearly the most favored system. However, how democracy should be understood concretely and applied in practice remains a puzzle because the point of departure for deciding how society should be organized differs depending on how the human being is perceived. That democracy should permit people to choose their government is not in dispute. The dividing line is on what kinds of rights, freedoms and obligations the individual should have and how these should be aligned to the interests of community.

The nature of the human being (the self), as understood in the Hobbesian, Libertarian and Liberal sense, is at odds with social reality outside the Western world. Except in times of hardship, such as, during periods of war, political chaos or confinement (in jails or hospitals), the human being in this part of the world is social. S/he is a by-product of community life, inter-dependent and bonded with the other members of his/her community and motivated to maintain this state of affairs. Even in times of extreme poverty or economic deprivation, which tests the limits of human loyalty, individuals remain attached to one another emotionally, socially and in many other ways.

Although the political models of governance recommended by Hobbes, Libertarians and Liberals are different, they are united in their affirmation of the individualistic nature of the human being. Where the latter two currents of thought differ from Hobbes is in their rejection of his characterization of human beings as evil by nature. They, therefore, come to different conclusions regarding the extent to which individuals deserve to exercise what are regarded as natural rights and freedoms. For Libertarians and Liberals there should be no hindrance to the exercise of civil and political rights by individuals. What is more, these rights should even be prioritized over the interests of the community. As far as they are concerned, a community is nothing more than the sum of its members, which means that the community (or social groups) cannot have distinct interests and rights. This is why they advocate reducing the role of governments and their influence over community matters and reject the idea of protecting marginalized social groups.

This political model, which prioritizes the rights of individuals over the needs of the community and rejects the idea that government should have a role in responding to these needs, blocks any possibilities of achieving democracy in substance. Less governance, by definition, means less care for the collective needs and problems of the governed. Under these circumstances, it is difficult to see how there could be a government for the people as a whole. What the electoral system assures is only democracy in form, a means of legitimizing the power of whoever rules.

Social contract theory, as imagined by Hobbes, was also intended to legitimize the authority of the ruler. The government can be viewed as being “of the people’ since the people chose it. This right to choose the ruler was justified by Hobbes because he believed that the individual has natural rights, i.e. the right to rule himself. However, since this person is assumed to be, by nature, egocentric, competitive and violent, Hobbes recommended surrendering these natural rights in the interest of the peace and interests of community life. One should note, in this regard, that Hobbes expected the ruler to govern by observing the mandates given by the governed – namely to protect the interests and safety of the community. This means, there would be ‘a government for the people’. What is problematic in the Hobbesian formula is the assumption that people would choose to surrender their rights and freedoms and willingly submit to suffering under a tyrannical rule.

Liberal and Libertarian democracies are products of the Western European societies and the states which were established outside Europe by the descendants of Europeans. Liberal democracy is a political system which mirrors the nature of the prevailing social relations and which evolved from the requirements of the socio-economic and political structures of the industrialized capitalist states. It attaches special importance to the freedoms and values of the individual citizen and applies social contract theory as a means of legitimizing governance through regular elections. This constitutes a system of government of the people, hence democracy in form. The exercise of individual rights and freedoms opens the doors for empowerment from below, and governance by the people. However, since minorities are not able participate effectively in the political machinery or to benefit from the economic wealth of these countries in the same way as the members of the majorities, the system has serious weaknesses.

In theory, this political model has the advantage of contributing to nation-building by shifting the loyalty of the individual away from his/her social group and traditional social structures to that of the state. However, in reality, this is possible only if states are politically and economically strong and able or willing to meet the needs of their citizens, including the marginalized members of the vulnerable groups. Otherwise, the latter will be unwilling to abandon their loyalty to traditional identities and social structures since they are the basis for their survival.

Whether this Western model of normative individualism works in the developing countries as it does in the West is an open question. To assume that the indigenous communities of the Amazon, the rural tribal communities of Africa or the religious communities of the Middle Eastern countries will replace their collective ways of life by normative individualism is to be naïve. Even in the more economically developed urban settings of these African and Asian countries, social relations have a collective dimension. Unlike in the West, the governments on these continents are not politically or economically strong enough, to care for their citizens, with the exception of mineral exporting countries (like the Gulf countries) or the few industrialized Asian countries. The negative consequences of replacing the existing social fabrics of these collective societies by normative individualism, at a time when the state is unable or unwilling to provide the means of existence to the citizens, would be  hard to predict. The massive exodus of ‘migrants’ from Africa to the European countries across the Mediterranean Sea might be one of these unfortunate consequences.

The fact that the developing countries have a heterogenous social base, in contrast to the homogenous nature of the nation-states of Europe, also calls into question the idea of rule of the majority which underpins democracy in Europe. This model of majority rule, that is characteristic of Liberal or Libertarian democracy, is appreciated by the members of the majorities since the political system adopts their ethnic, linguistic or religious characteristics. It is those who belong to the ethnic or linguistic or religious minorities who fear marginalization and discrimination based on their identities. It is no wonder, therefore, that the system can even tolerate and protect the exercise of individual rights and freedoms that are directed against ethnic, linguistic or religious minorities. This is also why when the racist, Nazi and Fascist groups mobilize the members of the majorities against the minorities they do it under the pretext of nationalism, by even describing themselves democrats.

For many of the African and Asian countries who have over one hundred smaller distinct ethnic, religious or cultural groups (e.g., Nigeria, Sudan, the Democratic Republic of the Congo and Ethiopia), majority rule can mean political and economic domination by very few ethnic groups with large populations. In most of these countries, the official languages used in the government offices, courts, schools, hospitals, employment areas, etc. are the language(s) or these majority groups. By virtue of their numerical size these majorities can effectively dominate the other groups economically, politically, culturally, socially and in other respects. The fear of being dominated by other social groups, as well as the desire to protect and promote their own traditional collective interests, leads individual in these kinds of societies to think of their own narrower social groups rather than with the nation when the right to votes is guaranteed. Alex Thomas was right in underscoring the point that even the recognition of “(M)ulti-party democracy … opens up the possibility of full-scale mobilisation. After all, as Claude Ake points out, ’Liberal democracy assumes individualism, but there is little individualism in Africa’. Africans interact on a more communal basis.”[82]

The other reason which makes normative individualism less attractive in countries that are not as economically developed as Western countries is that it is associated with calls to limit the role and authority of government in societal matters. People in countries with diverse social groups who suffer from neglect, deprivation and discrimination need centralized government policies and measures to provide assistance, for example, by expanding the infrastructure and providing education, health services, housing facilities and the like. This means government for the people. However, this is the exact opposite of what normative individualism calls for, particularly when inspired by the Randian political model.

This Randian model has been praised as the best system since it maximizes individual freedoms; however, at the same time it rejects the rights of individuals to work, health, education and a decent standard of living — i.e. to their very means of survival. Under this formula an unemployed person is given the option of accepting or rejecting an offer of employment. A person who is discriminated against in the field of employment, education or health has nowhere to turn to because the government is discouraged from responding to these kinds of social and economic problems. A citizen who is bankrupted after being forced to sell his home to pay for medical treatment for family member or who becomes disabled or ill due to conditions at work should not count on help from the government since the rights to health and a decent standard of living are not recognized. The individual merits no support as a citizen since the government has no authority to respond to such problems. Those private individuals who try to help by providing support are ridiculed since altruism is considered as foolishness. This model is surely unacceptable in developing countries. Martti Koskenniemi was correct in stating that “(T)he nation-State and its democratic forms may not be for export as pure form” and in warning against the insistence on using democratic models as ‘an international or universal norm of ‘democracy’ … within existing political communities (where it) may in fact be unacceptable … and always suspect as a neocolonialist strategy”.[83]

Concerned by the loophole in human rights which normative individualism has created, some Liberals, such as Jack Donnelly, Will Kymlicka, John Rawls and those who appreciate the virtues of Utilitarianism offer different kinds of remedies in the interest of social justice. Jack Donnelly endorses economic and social rights but not group rights, except indigenous rights. Kymlicka accepts group rights including minority rights. Both these positions deviate from normative individualism. Embracing Utilitarian ideas also creates obvious tension with the Liberal and Libertarian ways of thinking, whose very premise, at least as formulated in the thoughts of John Locke, Immanuel Kant and Jean Jacque Rousseau is the defense of natural rights. According to Jeremy Bentham, the father of Utilitarianism and positivism, the notion of natural rights is nonsense because it is fabricated based on passions.[84] “There are no rights without law”, in his opinion and “no rights contrary to the law.”[85] Rights, obligations, offence and services are all inter-connected and they are made by governments to govern the community.[86] When there are social problems or wrong things happen, it is the responsibility of the government to make them right, in ways that maximize benefits to the welfare of the governed. This is why Utilitarianism maintains that if a right is worth its name it should have utility.[87]

The collectivist schools of thoughts, such as, Communitarianism, Socialism and Social-Democracy embark from a solid base which considers the self as a by-product of the community and the defense of the collective interests. Unlike the proponents of normative individualism they do not have rely on imagined ‘natural rights’. Their concern for collective and group interests makes their approach ‘democracy friendly’ since the people are groups, not individuals. Regarding the self as a by-product of the community leads to the idea of empowering communities. However, this creates tension inside multi-ethnic and multi-national societies, and may even lead to the disintegration of their states, as occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. The challenge is to develop political models which extend democracy to the people of the state, as a whole, while protecting the interests of communities.

An example of a common ideological platform which unifies diverse ethnic, religious and cultural groups under a common cause is the Marxist theory of Socialism which merges ‘the workers’ into one proletarian class. The weaknesses of this theory include (i) the rejection of the civil, political, economic, social and cultural rights of the individuals, (ii) the use of the top-down approaches of governance by elitists (central committees) to dictate the affairs and interests on the people, and (iii) the assumption that all sociological nations should have the right to create their own political nations. The concept of the ‘dictatorship of the proletariat’ implies elitist rule by those who claim to know the requirements of ‘scientific’ socialism and are intolerant of dissent. We have seen, time and again, how opposition can be silenced by being condemned as anti-social, reactionary, counter-revolutionary.

The other problem with the Marxism model is its defense of national self-determination. The application of this theory would lead to the disintegration of multi-national states such as Russia, Spain and the United Kingdom as well as most African and Asian countries, as has already occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. Moreover, this is likely to encourage smaller social groups, such as, indigenous groups, tribes, and religious and linguistic communities to also struggle either for separation or for some kind of autonomy, thereby further disrupting the fabric of national unity.

Social democracy has navigated between these contrasting positions of Marxism, Communitarianism and Liberalism. It accepts the social nature of mankind and rejects the notion of political emancipation through proletariat revolution. The electoral system and multi-party system are embraced as the best means of protecting individual rights and freedoms. This way, the notion of government by the people and of the people is guaranteed. The interests of the broader community are promoted in two ways. On the one hand, economic, social and cultural rights are recognized and promoted through higher taxation and key public sectors – such as schools, transportation, insurance, media – are placed under ‘public’ control. This political model has been used for decades and continues to dominate politics in the Nordic countries, such as Sweden. This model tolerates the existence of rival political parties, such as Liberals, Leftists, extreme Right-wing parties and Christian Democrats. While the Social Democratic Party of Sweden is not as powerful as it used to be it is still the strongest of all the parties, and the dominance of social democratic ideas is such that even the rival parties do not dare to openly call for dismantling of the social benefits which Social Democracy has brought about. Interestingly, because Social Democracy has produced tangible results, the strategy which the populist parties use is to say that immigrants are threat to the nation and looting what is collected from the taxpayer. To put it crudely, their slogans are simple: ‘elect us and we will drive the alien looters out’. Not surprisingly, these kinds of emotionally appealing promises have not enabled the Swedish Democrats (the Extreme Right) to get about 17% of the votes in the most recent election.

 The modern concept of democracy – political evolution

The American and French revolutions created shock-waves among despotic leaders near and far and inspired hope among the victims of oppression. During the first decade of the 19th century the armies of Napoleon spread out over large parts of Europe, promising the fruits of the French Revolution to the inhabitants of the occupied territories. The leaders of the uprisings in European colonies of Central and South America took advantage of the occupation of Portugal and Spain by Napoleon to struggle for independence and start out on a new, democratic way of life. The louder and wider the drums of revolution, popular sovereignty and self-determination echoed, the more colonialism and despotism lost ground in the Western hemisphere. European despots were left with a choice between peaceful change and bloody uprisings.

Not surprisingly, constitutional proclamations upholding popular sovereignty started to make appearances in many places, even if what was promised and proclaimed was not always delivered. Article 49 of the May 17, 1814 constitution of the newly established state of Norway promised Norwegian citizens that the new order would place the legislative power in hands of their parliament (the Storting).[88] The Liberian Declaration of Independence of July 16, 1848 recognized the ‘inalienable rights’ of all men including “life, liberty, and the right to acquire, possess, enjoy, and defend property” and:

…to institute a government, and to choose and adopt that system, or form of it, which in their opinion will most effectively accomplish these objects, and secure their happiness, … to institute government and powers necessary to conduct it is an inalienable right and cannot be resisted without the grossest injustice.”[89]

Article 39 of the Mexican constitution of 1917 stated that “national sovereignty resides essentially and originally in the people. All public power originates in the people and is instituted for their benefit. The people at all times have the inalienable right to alter or modify their form of government”[90] Paragraph 1 of article 6 of the 1937 Irish constitution affirmed that:“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”[91]

In light of this there is no doubt that the notion of ‘the will of the people’ has been transformed to an important international principle by the end of World War I.This is not, by any means, to suggest that democratic governments were established everywhere or that the states which purported to be democratic were acting democratically. The point is made merely to underscore that popular sovereignty was increasingly invoked and formally acknowledged in the American hemisphere and in Europe including in Russia where a Communist form of governance had been proclaimed. The enjoyment of effective democracy, however, had to wait for several decades until the required institutions were fully developed and the citizens (including women) were empowered to exercise their democratic rights.

The notion of ‘the will of the people` received a face-lift when it was proposed for use as an international political norm by the victorious Allied Powers at the end of World War I. The intention behind this proposal was mainly to legitimize of the contours of the new political borders of Europe. This was to be done by asking some of the inhabitants of the frontier areas to choose between the bordering states they preferred to belong to. Speaking before the U.S. Congress, President Woodrow Wilson emphasized the significance of respecting the rights of every people to “be left free to determine its own polity, its own way of government” since “(N)o peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their powers from the consent of the governed.”[92] This idea was endorsed by the British Labour party with regard to the occupied German and Ottoman territories.[93]

There is no doubt that the problems that emerged following World War I were ultimately settled according to the principle of ‘Might is Right’. Few would doubt that the political behavior of the Allied Powers, on both domestic and international planes, was hardly reconcilable with this noble idea of ‘the will of the people’. Nevertheless, by this time the concept of ‘will of the people’ had become popular and it was applied. albeit selectively, in border areas such as the Saar Basin, Upper Silesia, East Prussia, and Eupen and Malmedy by asking the inhabitants of these regions to indicate which states they wished be part of.[94] The inhabitants of these territories were not given the right to create separate states, or to have their own rule in the form of autonomy or self-administration. The principle of self-determination was applied in a restricted way.

The other innovative political development which occurred at this time was the establishment of the Mandate system. Under Article 22 of the Covenant of the League of Nations, the states that were awarded the administration of territories that were taken from Germany and the Ottoman Turks, were required to respect “the principle that the well-being and development of such peoples form a sacred trust of civilization”. The manner in which this obligation was discharged was supervised by the League of Nations.

The International Legal Evolution of Democracy as a Universal Legal Concept

The Mandates and Roles of the UN. More relevant to the present era is how the notion of democracy was developed by the United Nations as a legal concept of universal validity. This development came about after a long and twisted process of negotiations and international political cooperation. The mandates for being concerned with this subject-matter were enshrined in the purposes of this organization. According to Article 1 paragraph 3 they include the promotion of respect for human rights and finding solutions to international economic and social problems. Paragraph 2 of this same provision obliges the UN to promote the equal rights and self-determination of peoples as the basis for friendly relations among nations. Even if the word democracy is not explicitly mentioned in these provisions, it is obvious that the realization of these goals would further the process of democratization.

Before explaining the road-map used by the UN to promote democratic values, it is important to remember things. Firstly, the UN does not have the power to adopt legally binding decisions, other than those that concern international peace and security. This is why its guidelines on the promotion of democracy are merely guidelines, unless they are embodied in legally binding instruments which are ratified by states. Example of this includes the right to take part in government which is recognized in article 25 of the international covenant on civil and political rights. Secondly, when it comes to the kinds of political systems which best promote democracy, the view of this organization is that it does not endorse any particular model. Whether this is stated merely for the sake of politeness to respect the Charter principle of state sovereignty, it is up to the reader to decide. What is equally obvious is that the UN is urging states to conduct themselves in accordance with the Human Rights-Based Approach, which suggests that this approach appears to be the only acceptable method of promoting and measuring democracy in the absence of other tools.

The UN has been following two distinct ‘pathways’ to the promotion of democracy, one based on peoples’ rights and good governance and the second one based on human rights.[95] The former focuses on the collective dimensions of the rights of peoples (political communities)– i.e. democracy ‘from above’. The second approach focuses on how empowerment is to be promoted ‘from below’ by facilitating the exercise of rights by individuals and the members of some social groups. These two approaches are closely intertwined. Ignoring one or the other leads to a distorted understanding of how democracy, as a concept, is perceived by the UN. In the following section we will sketch the legal background for the UN’s promotion of both peoples’ rights and human rights. The significance of these legal frameworks for democracy will be explored in more detail later. 

Developing the Rights of Peoples: The UN developed the rights of peoples because its purposes include promoting “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” (art. 1(2) emphasis added). Article 55 lists the conditions which are necessary for achieving stability based on people’s rights. These include respect for human rights, and the promotion of economic and social development and other collective interests of the community. In Articles 73 and 76, this instrument addresses the rights of peoples inhabiting non-self-governing territories. All these references to the rights of peoples has evidently transformed the notion of ‘people’, which was earlier vague and an ideologically contested political concept, to a universally applicable legal concept with practical implications.

The UN Charter has not defined the concept of ‘people’. Nor has it listed all the rights peoples have. However, it is apparent that its drafters took care to ensure that issues related to democracy were not left out altogether. For example, its preambles start with the words “We the peoples of the United Nations” and ends by stating that it is these peoples of the world “through representatives assembled in the city of San Francisco, who have exhibited their full powers … (and established) … the United Nations.” Although many of the governments that were assembled to establish this organization in 1945 were not democratic, the form of the words used in the Charter sends a clear signal that states should belong to their peoples and not to the rulers. This implies the illegitimacy of despotism: a clear signal to despotic rulers that the UN would not tolerate the conducts of rulers who say, “I am the State” or “The State, That’s me”, as Louis XVI of France is supposed to have stated.

Using the mandates given to it by its Charter to promote friendly relations among nations based on respect for people’s rights(art. 1(2)), human rights and development (art. 1(3)), the UN wasted very little time in clarifying the road-map that should be followed. The first bold step was taken in 1948 when it adopted Universal Declaration of Human Rights setting out the civil, political, economic, social and cultural rights of the individual. Article 21 of this Declaration specifies the role of democracy in guaranteeing human rights. According to the 3rd paragraph of this provision, “(T)he will of the peoples hall be the basis of the authority of government” (emphasis added) and “this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”  The first two operative paragraphs of this provision deal with the rights of the citizen “to take part in the government of his country, directly or through freely chosen representatives” and to “equal access to public service”.

Leaving this implicit endorsement of democracy aside, group rights, such as minority or indigenous rights and the rights of peoples to self-determination were left out from the Universal Declaration of Human Rights.[96] Because of this the states that were disappointed by this omission wasted no time in mobilizing in defense of the rights of peoples. Since these states were in the majority, they were able to muster the necessary votes to recognize the right to self-determination as a human right[97] and to include this right in the two draft covenants on human rights which were prepared following the adoption of the Universal Declaration on Human Rights.[98] Henceforth, peoples’ rights were to be treated not only as human rights but also as a pre-requisite for the effective enjoyment of human rights.[99]

Bearing this in mind, as well as the pledges given by the colonial powers under article 73 and 76 of the Charter to respect the rights of the peoples of the dependent territories, including their “their political, economic, social, and educational advancement” and “self-government” (art. 73) or independence (art. 76) the UN pressed these powers to deliver on their pledges. When they dragged their feet, the General Assembly adopted, on 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Territories. The rest is history: colonialism was progressively dismantled, overseen by the Decolonization Committee, a process which led to the gradual advancement of democracy.

In the decades that followed, the UN adopted important instruments re-affirming and elaborating the different rights of peoples, including their right to social progress and development, to sovereignty over natural resources and wealth, etc. The adoption and coming into force of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights in 1976 further affirmed the validity and significance of human rights and peoples’ rights.  Monitoring bodies were set up to assess the compliance with the provisions of these Covenants by the states that had ratified them. Of special importance to democracy is the acknowledgement made in paragraph 1 of article 1 of these two covenants that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

This provision acknowledges the political, economic, social and cultural dimensions of the rights which peoples have. The exercise of the political rights entitles a people, i.e., an internationally recognized political community or public family, to decide what the international political status of its country should be, e.g. to be independent, to be united with other political entities, or to be associated in different ways. In addition, a people is also said to have the right to manage its domestic affairs by freely pursuing its economic, social and cultural development. How this is done is left to each people and its state. However, it is interesting to note, in this regard, that article 55 of the Charter considers the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development” as being essential for the realization of the rights of peoples. The UN is obliged by this provision to promote these goals, and members states have given their pledge to cooperate with these efforts, in accordance with article 56 of the Charter.

Developing Human Rights. The 1945 UN Charter reaffirms that all human beings have dignity and worth. It also made the promotion of human rights and freedom sone of its basic purposes. Proceeding from these premises the UN acknowledged, in 1948 the legitimacy of civil, political, economic, social and cultural rights when it adopted the Universal Declaration of Human Rights. The unique contribution which this document has brought to the discourse on human rights and democracy are highlighted by six key points of interest.

First, the declaration recognizes, in the third preamble, that “human rights should be protected by the rule of law” to avoid rebellion against oppression and tyrannical rule. This statement slams the door on the Hobbesian model of governance. Second, it articulates rights and freedoms by individualizing them (as the rights of individuals) as desired by Liberals and Libertarians. Third, it identifies the civil and political rights necessary for establishing and sustaining democratic governance, e.g., the rights to the freedom of expression, assembly, association and political participation. Fourth, it sets out the economic, social and cultural rights which good governance should promote – i.e. the entitlement to work, health, education, an adequate standard of living, etc. Fifth, in article 29, it accepts the positions of collectivists concerning the importance of subordinating individual rights and freedoms to the interests of the community. This provision makes it clear that individual rights can be restricted as “determined by law for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. At the same time, it acknowledges that the individual beneficiary of human rights “has duties to the community in which the free and full development of his personality is possible”. Last but not least, as pointed out earlier, this Declaration requires that the authority of governments should be based on “the will of the people”, which “shall be expressed in periodic and genuine elections”.

When the Universal Declaration on Human Rights was adopted no state voted against it. This was because its contents were formulated after considerable negotiations and because it was understood that it was not intended to be legally binding, but merely to set a “common standard of achievement for all peoples and nations” as indicated in the last paragraph of the preamble of the Declaration. As stated in article 10 of the UN Charter, the General Assembly has no power to adopt binding instruments. Still, there were a few states that chose to abstain from supporting the Universal Declaration of Human Rights because its contents were incompatible with their ideological or political convictions. These included the Soviet Union and its allies (consistent with the opposition of Marx to ‘the rights of man’), the racist regime of South Africa and conservative Saudi Arabia. The idea that all individuals should take part in politics and that governments should derive their authority from the will of the governed was not appreciated by the governments of the latter two states at the time. This is not to say that the domestic features of the other states who voted in favor of the declaration were fully in line with what required by the Universal Declaration of Human Rights. It simply explains what ‘compelled’ those states that chose to abstain to do so.

After the adoption of the Universal Declaration on Human Rights, the UN turned its attention to the preparation of legally binding covenants. On 5 February 1952 the UN General Assembly adopted resolution 543 (VI) requesting the Economic and Social Council to instruct the Commission on Human Rights to draft two separate covenants for subsequent adoption by the General Assembly. One was to deal with civil and political rights and the other with economic, social and cultural rights. During the drafting process the ideologically charged controversies relating to the validity of economic, social and cultural rights once again became the focus of intense debates. When it became clear that these were leading nowhere,  the General Assembly stepped in to break the deadlock by asking the Economic and Social Council to instruct the Commission on Human Rights (the drafting body) to acknowledge that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man”.[100]

Bearing this in mind, the Human Rights Commission was required to “include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to civic and political rights and freedoms.”[101] The Commission complied with this, which is why we now find, in the third preamble of both these covenants, an identical provision acknowledging that:

the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights

Ever since then, the inseparability of the linkage between civil and political and economic, social and cultural rights has been continually re-affirmed by the international community. In the 1968 Tehran Declaration, which was adopted on the twentieth anniversary of the adoption of the Universal Declaration of Human Rights, the General Assembly made it clear that:

Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development”.[102]

This formulation was slightly reformulated gradually, when the General Assembly adopted the 1993 Vienna Declaration and Programme of Action, by stating:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”[103]

After the two international covenants were adopted by General Assembly resolution 2200 A (XXI) on 16 December 1966, and came to force in 1976, the stage was set for the emergence of many other human rights conventions. Some of these subsequent conventions provide protection for the members of the different vulnerable groups (e.g., children, women, those with disabilities, migrant workers, indigenous peoples and those belonging to minorities) by contextualizing the complex realities obstructing their enjoyment of rights on an equal basis with others. The international regime of human rights which is now in place has been further enriched by the practices of the international monitoring bodies of the UN, the treaty committees, those of specialized agencies (e.g., the International Labour Organization and UNESCO) and the regional organizations (e.g., the Council of Europe, the African Union, the Organization of American States, etc.).

These developments have been warmly welcomed by progressive states and non-state actors who are committed to the defense of human rights, as positive steps towards the creation of a human rights-sensitive just global order. However, because the existing international monitoring systems have obvious weaknesses, pressure to further develop these mechanisms have been growing. In response to these concerns, the UN has gradually developed its Human Rights-Based Approach to be used as a normative conceptual framework to assess and promote compliance with international standards for human rights. Since the UN considers that the progress that is made towards developing human rights is irreversible, it started to use this HRBA for assessing how states are conducting themselves in human rights sensitive matters, including when it comes to promoting democratic values.

Relying on a human rights-based approach for political conducts: general background

It may well be asked whether governments will permit the international organizations such as the UN to assess their conduct under the lens of human rights. Can the international requirements to comply with human rights standards and the principles of social justice really shape the conduct of political actors? This is not a new question. It was raised as far back as 1919 in the preamble of the International Labour Organization, which clarifies why this organization was established:

Whereas universal and lasting peace can be established only if it is based upon social justice. And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required … The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organization.”

It may seem puzzling that states of this period, especially the colonial powers, agreed to the establishment of such an organization, committed to the promotion of social justice. The explanation lies in the timing: the ILO was set up in the aftermath of the 1917 Bolshevik Revolution in Russia, when fears of the spill-over effects of this Revolution were real. The establishment of a communist regime in the USSR was justified as a response to the grievances of Russian workers against capitalism; and it seemed all too likely that workers in Western capitalist states would do the same. Added to this was the exhaustion of the Western powers after the First World War (1914-1918), leaving them with little alternative but to seek to establish more sustainable norms of political behaviour, based on humane values.

Unfortunately, this enterprise was not founded on solid grounds. The League of Nations which was established at the time to maintain international peace and security was not equipped with the legal and political mandates necessary to create a political order based on human rights. Instead, the League was used to protect the hegemonic interests of the rival big powers, including by preserving their spheres of colonial domination. An international organization which protects an unjust political order cannot survive and it soon became clear that the next annexationist wars were just around the corner.

The establishment of the UN brought about a unique situation which favoured the establishment of a more just order based on the promotion of human rights. The states which joined hands to create this organization made clear their determination, as stated in the preambles of the UN Charter that they are committed:

to save succeeding generations from the scourge of war…

to reaffirm faith in fundamental human rights.…

to establish conditions under which justice … can be maintained, and

to promote social progress and better standards of life in larger freedom”.

The‘peoples of the world’ were thus promised an international order that would take issues related to human rights and justice seriously. To this end, the UN was given a clear mandate to promote the self-determination of peoples and universal human rights, as provided by article 1 of the Charter, bearing in mind the need for settling international disputes “in conformity with the principles of justice and international law”. The regime of human rights that was developed subsequently was based on the understanding that its operation should not contravene the principles of state sovereignty and non-intervention. The ratification of the human rights instruments is left up to each state, although this would be monitored by the international bodies that are created for this purpose. If states ratify these human rights instruments they are not at liberty to disregard the undertakings assumed thereunder. If they do, violations of human rights are seen as an essentially international concern, warranting the legitimate responses in accordance with the seriousness of the case.

It goes without saying, therefore, that states which have assumed international human rights obligations are required to conduct themselves as required by the ratified instruments. This means they should follow a human rights-based approach when pursuing their political objectives. The idea of empowering the UN to monitor how this approach was pursued was resisted during the Cold War by the ardent defenders of state sovereignty, such as the U.S.S.R. and its allies, since they were suspicious of the political intentions of the Western Powers. The states which are not as economically developed and politically stable as those in the West also feared that this approach could be easily exploited to undermine state sovereignty in the pretext of addressing human rights violations. When the Soviet Bloc collapsed, resistance to the use of this human rights-based approach by the UN started to crumble. The Western powers too started to pressure these weaker states to embrace this approach, if they are to participate in Western-led globalization. This basically meant they were required to respect human rights as perceived by Liberalism.

The Development of Human Rights-Based Approach by the UN

As the Soviet Union and its allies became weaker towards the end of the 1980s, the Western powers, political activists, non-governmental organizations and units within the UN wasted no time in making sure that a human rights-based approach to development should be incorporated into the UN system. The basic idea was to use this approach by making human rights a cross-cutting and pivotal factor for all states and agencies involved in formulating policies and pursuing and assessing development programs.  As UNICEF put it:

“A human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”[104]

This approach, as its proponents see it, ensures further consolidations of progress achieved in developing the regime of human rights, since the excuses which are commonly made to disregard human rights in the pretext of development will no longer be tolerated. After all, in article 1 (1) of the 1986 Declaration on the Right to Development, development has already recognized the right to development as:

“an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

This means, when states design and implement their development plans, programs and activities, the human being should be “the central subject of development and should be the active participant and beneficiary of the right to development” (art. 2(1)). The human being should not be used as a tool for development.

One of the driving forces behind this promotion of human development is the United Nations Development Programme (UNDP), which published its first Human Development Report in 1990. Thereafter, the seeds of the HRBA began to be sown in the different international conferences that were arranged by the UN. The 1992 Rio Declaration on environment and development urged states to put human beings at the center of ‘sustainable development” and to enhance the participation of women and indigenous peoples in the development process.[105] The 1993 Vienna Declaration and Programme of Action reaffirmed “the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights.”[106] Article 16 of the 1995 Fourth World Conference on Women in Beijing called for the promotion of:

sustained economic growth, social development, environmental protection and social justice (which) requires the involvement of women in economic and social development, equal opportunities and the full and equal participation of women and men as agents and beneficiaries of people-centred sustainable development”.

That same year the World Summit for Social Development underscored, in article 66, the importance of pursuing a policy of social integration by enabling the individual to play an active role in the process, and added that:

Such an inclusive society must be based on respect for all human rights and fundamental freedoms, cultural and religious diversity, social justice and the special needs of vulnerable and disadvantaged groups, democratic participation and the rule of law”.

Shortly thereafter, A UN Programme for Reform was launched, in order to inspire UN-affiliated entities “to mainstream human rights into their various activities and programmes within the framework of their respective mandates.”[107] The idea behind this was to design a commonly agreed upon, right-based approach model for use by UN agencies, funds and programmes. The task was initially left to the UN Interagency Workshop on a Human Rights Based Approach, which met from 3 to 5 May 2003. This gradually led to the formulation of a “Common Understanding”, which was subsequently endorsed by the 2005 World Summit, giving HRBA official political legitimacy, thereby paving the road for “developing concrete tools, instruments and processes … [and] coordinated system-wide actions in those areas.”[108]

In the context of development, there are two basic requirements for compliance with HRBA. First, the goals of development policies, strategies, programs, activities, technical assistance and co-operation should always further human rights, as laid down in the Universal Declaration of Human Rights and other international human rights instruments. This means that the human rights standards contained in these instruments should guide development programming and cooperation in all sectors and in all phases of the development processes. Second, these development processes and cooperation should contribute to strengthening the capacities of the ‘rights-holders’ to claim their rights and the ‘duty-bearers’ to comply with their human rights obligations. This requires appreciating five key points: i. the universality of human rights, so that all human beings are in a position to exercise their rights; ii. the inalienable nature of human rights, which means that they cannot be abandoned; iii. The indivisibility, inter-dependent and inter-relatedness of civil, political, economic, social and cultural rights, without prioritizing one over the other; iv. The promotion of equal rights by combating all forms of discrimination, e.g. by ensuring inclusion and participation; and v. respect for the rule of law and the principle of accountability.[109]

When applied to the real world what this means is that development should be understood in human terms, as a means of safeguarding the dignity and worth of the human being, for the benefit and empowerment of all the right-holders without discrimination based on sex, age, linguistic, religious and other factors. This requires compliance by States with the obligations which they have assumed under the different international human rights instruments, including those protecting the members of vulnerable groups, such as children, women, migrant workers, persons with disabilities and those who belong to minorities and indigenous groups.

It is important to recognize that this HRBA is not legally binding or free from controversy. Its starting point which considers human rights as inter-related, interdependent and interconnected, as recognized in the Universal Declaration of Human Rights, is questioned by some states who have intentionally avoided from ratifying the covenant on civil and political rights or the covenant on economic and social rights, or some of the conventions which protect vulnerable groups. The principle of state sovereignty, which is recognized in paragraph 1 of article 2 permits states to ratify or not to ratify the human rights instruments and to make reservations on the instruments they wish to ratify. As elaborated in principles 3 and 4 of the 1970 UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States the principle of sovereignty also entails non-intervention in what is essentially a domestic matter. “Every State” under this declaration, “has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.”

States that lag behind in economic development see the HRBA with suspicion because it can be used to stifle their development efforts by making allegations about human rights abuses. These states, especially those with marginalized and neglected multi-ethnic and multi-national groups, claim that they have inherited unjust economic, social and political structures from their colonial past. As they see it, there is no quick-fix to achieve development without making sacrifices. Without rapid economic development, human rights cannot be effectively realized and enjoyed by all on equal basis. These states, therefore, appear to be caught in a vicious circle with no easy escape from the traps of underdevelopment.

Under these circumstances, as governments of these developing countries see it, prioritizing HRBA will not only frustrate the efforts which they are making to develop, but could even de-legitimize these governments themselves and in the end weaken their states. The developed states do not have this problem because they are already developed – and mostly by sacrificing human rights. A case in point is the way the industrialized states in north America and the Western Europe were able to develop during the past centuries by benefiting from slavery and colonial subjugation. The point here is not to say that the developing countries should do what the developed ones have done, but to underscore the point that giving veto power to individuals and local groups on the pretext of human rights, e.g. when attention is turned to the construction of dams, railroads or highways, the large-scale development of agriculture and the exploitation of minerals, etc. runs the risk of arresting national development efforts.

Leaving behind these controversies surrounding HRBA, UN bodies, human rights monitors, donors, NGOs and an increasing number of states are now use of this tool for evaluation of development policies, and to make sure that rights-holders are claiming their rights. UNDP relies on HRBA for assessing the success of development efforts of states in promoting sustainable human development and tackling inequalities and discrimination. Donor agencies use it to see how their development aid benefits the local populations on the ground. UNICEF uses it to assess the extent to which the welfare of children is being protected in accordance with the Convention on the Rights of the Child. Likewise, WHO uses HRBA to assess health service provision for children, compliance with the health service provision for women required by the Convention on the Elimination of Discrimination against Women, and accessibility and acceptability of food, water, clothing and shelter to populations at large as required by articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights.

At the same time as the HRBA is monitored from above by UN bodies, specialized agencies, donors and states, the UN was also making efforts to empower beneficiaries and defenders of human rights to apply HRBA from below. These efforts culminated in 1998 in the adoption of the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms” (better known as the Declaration on Human Rights Defenders). This instrument sets out how the voices of the beneficiaries and defenders of human rights should be respected and promoted in the debates on development. “Individuals, groups, institutions and non-governmental organizations”, states article 18, “have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.”

The different provisions of this declaration underscore the roles which states should play in supporting human rights activities. More specifically, it defends the rights of individuals and groups “to promote and strive for the protection and realization of human rights at the national and international levels” (art. 1). These activities include the rights “to know, seek, obtain, receive and hold information about human rights” (art. 6(a)), to meet, assemble and participate in associations, to form non-governmental organizations, and to communicate with international organizations and NGOs (art. 5) and to engage in public awareness campaigns (art. 6(b) & (c) & 16). Further, the declaration affirms the rights of individuals and groups to solicit resources for their human rights activities (art. 13), to engage in peaceful activities (art. 12), to obtain effective remedies for the rights that are violated (art. 9(1)) and to approach governmental bodies and agencies to express criticism and propose improvements (art. 8).

Shortly after this declaration was adopted by the UN General Assembly, the Human Rights Commission also began highlighting the kinds of measures which states should take to promote democracy. These included respecting human rights in general, but also in particular political rights, such as the freedoms of expression, assembly and association (for example by allowing multiple political parties), and the right to participate in the government. Furthermore, states were urged to strengthen their electoral systems (by ensuring universal suffrage), to guarantee the impartiality of the judiciary, promote a pluralistic and independent media, ensure respect for the rule of law, and enhance the transparency and the accountability of government.[110] Support was also given by UN offices and programs to national and local initiatives to empower women, to strengthen human rights institutions, to safeguard the independence of the media and develop policies and laws promoting freedoms of expression, association and assembly.[111] All these measures were deemed to be necessary for promotion of democracy.

Applying the UN HRBA to Democracy – the Group Rights Approach

Collectivists, such as Socialists and Communitarians, and most of the defenders of state sovereignty prefer to see the UN focus on group rights (and state sovereignty) when applying HRBA to promote and measure democracy. It is evident that HRBA is currently used mainly to check on the extent to which countries respect and promote individual rights and freedoms, as preferred by Liberals and Libertarians. However, it would be a mistake to assume that the international regime of human rights has entirely abandoned the collectivist approach, especially how peoples’ rights are promoted. The UN has been promoting empowerment both from below (by promoting individual rights) and from above (by promoting the rights of peoples) to further the processes of democratization.

The UN assumed its mandate to promote the rights of peoples on the basis of articles 1(2), 73 and 76 of its Charter. The earlier moves of this organization to promote the rights of peoples were aimed at facilitating the decolonization of the non-self-governing territories. This was achieved by following two separate approaches. On the one hand, the UN monitored compliance by administrators of colonial territories with their human rights obligations under articles 73 and 76 of the UN Charter, which had both collective and individual dimensions. On the other hand, this organization was promoting ‘friendly relations among nations based on the principle of equal rights and self-determination of peoples’ as provided by paragraph 2 of article 1 of the Charter. The latter, in essence, concerns promoting the rights of political entities (i.e. the dependent nations) and their relations with the administering powers. Operative paragraph 3 of General Assembly resolution 637 A (VII) 16 December 1952 encapsulates how these two approaches were invoked to achieve the same goal of ending colonialism. This provision provided that:

“The States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for complete self-government or independence.”

Frustrated by the consistent demands of the UN General Assembly calling for the speeding up of the process of democratization in the non-self-governing territories, the colonial powers questioned the legal basis for these kinds of interventions by the UN, since they considered these questions as internal matters. At one point they even refused to send the reports to the UN as required under article 73 of the Charter. If the UN was to proceed with this manner of ‘intervention’, it was argued, then other independent states too should do the same by speeding up the process of democratization within their realms e.g., by empowering minorities and indigenous groups. This political campaign was led by Belgium using the formula which was known at that time ‘the Belgian thesis’. The idea was to broaden the obligations mentioned in articles 73 and 76 of the Charter to all the UN members to promote self-government for all their minorities and indigenous tribes.[112] This idea was dismissed by the anti-colonial camp as an effort to meddle in the internal matters of independent states, by confusing internal and international issues, thereby distorting the purposes of articles 73 and 76 (the so-called colonial provisions).[113]

One of the arguments used by the colonial powers to reject the promotion of human rights, democracy and self-determination in their colonial territories was that the word self-determination is not even mentioned in articles 73 and 76. The General Assembly responded by recognizing the right of peoples to self-determination as a human right, by resolution 421 D(V) of 4 December 1950. On 5 February 1952, the General Assembly went a step further by adopting resolution 545 (VI) which requires an article which deals with this right to be inserted in the international covenants that were being drafted. The colonial states, backed by most other Western states, rejected this by raising the familiar Liberal argument that the right of peoples to self-determination was a group right and not individual human right and therefore cannot be accepted as a human right. Even if the UN was to proceed with this idea, they argued, it would be difficult to apply it because it was difficult to define who the right-holders (i.e. the ‘peoples’) were.

The General Assembly justified its own moves by underlining that this right to self-determination was already recognized in paragraph 2 of article 1 of the UN Charter. Moreover, the UN would continue to promote this right throughout the dependent territories since they had international status and were not simply internal matters of the colonial powers. When the colonial powers refused to cooperate in dismantling their colonial rule based on the principle of the ‘will of the people’, the General Assembly adopted, in 1960, its Declaration on the Granting of Independence to Colonial Countries and Peoples. This was followed by the creation of its Decolonization Committee to speed up the demise of colonialism. The rest is the story of how around seventy per cent of the population of the world was set free from the yoke of colonialism. This was an important step forward for democracy.

The UN Charter recognizes the principle of equal rights and self-determination of peoples and that the two international covenants clearly acknowledge the rights of “all peoples” to self-determination. This justifies the UN’s concern over how the right to self-determination is respected and promoted for all peoples, including those living inside independent states. In other words, the fact that colonial countries have achieved their political independence does not mean that the end of the road has been achieved when it comes to the relevance of the right to self-determination. How the new and old independent states conduct themselves when respecting and promoting the rights of people continues to be of concern to the UN. Proceeding from this premise, the UN has continued to adopt important declarations which elaborate the different rights of all peoples. Examples include the rights to social progress and development[114], on sovereignty over natural resources and wealth[115], and the right to development.[116] In all these instruments attention is drawn to ‘peoples’ rights’ and how the needs of the members of these political communities are to be met. It is important to recognize, in this respect, that unlike the right to self-determination, which is affirmed by the two legally binding covenants, most of above-mentioned rights are mentioned in declarations which are not binding and only set guidelines.

Equally important is to note when it comes to how the UN promotes democracy, are the steps taken to promote the rights of the rights of persons belonging to minorities and indigenous groups. In 1992, this organization adopted the Declaration on the Rights of Persons Belonging to National, Ethnic, and Religious Minorities.[117] Although this declaration takes an individualized approach to minority rights it also acknowledges that the rights that are recognized can be exercised collectively. In 2007 the UN adopted the Declaration on the Rights of Indigenous Peoples. This instrument defends both the individual and group rights of these communities. In effect, this latter instrument which promotes the rights of ‘indigenous peoples’ follows the ‘Belgian thesis’ which was defended in the late 1940s and early 1950s. At the time Belgian was calling for expanding the obligations assumed by the Colonial Powers in relation to articles 73 and 76 to encompass all states.

The 2007 Indigenous Declaration acknowledges that indigenous peoples have the right to internal self-determination in the form of self-government or autonomy[118] and calls for the protection of  their laws, cultures, traditions, languages, institutions, traditional medicines and land rights.[119] The implementation of this instrument will clearly empower the members of the indigenous communities, as well as indigenous groups as entities, to pursue their own economic, social and cultural development. To facilitate this process the UN established a Forum for Indigenous Peoples inside the UN, for networking among representatives of indigenous peoples and to facilitate discussion of issues of interest to them with one another and with others. It has also appointed a Special Rapporteur to monitor their human rights.

The approach used by the UN to empower indigenous groups introduces an interesting question into the debate on the promotion of democracy, since minorities are not afforded similar group rights, for example to autonomy, self-government, and right to develop their own languages and cultures. It is to be recalled that when the Covenant on Civil and Political Rights were being prepared, the U.S.S.R. and Yugoslav both tabled draft resolutions calling for the recognition of the collective rights of minorities. The U.S.S.R.’s resolution defined these rights as follows:

The State shall ensure to national minorities the right to use their native tongue and to possess their national schools, libraries, museums and other cultural and educational institutions[120]

This resolution was not accepted. Instead the formula that was agreed upon for minority rights focused on the right individuals not to be denied access to these benefits, as set out in article 27 of the Covenant on Civil and Political rights:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

This defective formulation was widely criticized later by the defenders of minority rights as being insufficient and vague. To remedy this, the 1992 declaration on the rights of minorities affirms that persons belonging to ethnic, linguistic, religious or national minorities “have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language” (art. 2). It also calls upon states to “encourage conditions for the promotion of that identity” (art. 1) rather than allowing the right-holder to do this. As set out in paragraph 2 of article 4:  “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.”

These formulas of promoting group rights and responding to their needs can be seen as positive steps in the promotion of empowerment and democracy. However, most states are wary of advancing the agenda of minority rights because of the fear that this could lead to ethnic-based rivalry and local nationalism, threatening national unity. In a worst-case scenario, they fear, this could tear apart their state. The indigenous question was seen differently because most states deny having such groups and argue that they exist only in states where the descendants of the European settlers have established states outside Europe, e.g. in Australia, New Zealand and the Americas.

Applying the UN HRBA to Democracy: The Civil and Political Rights Lenses

The content of civil and political rights. In the view of most of the defenders of normative individualism, democracy should only be measured with reference individual civil and political rights and how these are respected and promoted. Before examining how these lenses works, it is necessary to explore the contents of these rights as set out in the Universal Declaration of Human Rights and more importantly in legally binding International Covenant on Civil and Political Rights (CCPR). This latter instrument has been ratified by 172 states. Both these instruments list the civil and political rights which are derived “from the inherent dignity of the human person”. According to the covenant on civil and political rights, what are acknowledged include the protection of life (art. 6), privacy (art. 17), family (art. 23), protection from slavery, forced labor and servitude (art. 8), from torture and similar cruel and inhuman punishment or treatment (art. 7), from arbitrary arrest (art. 9), and from punishment through retroactive application of laws (art.15). This covenant also acknowledges the rights to freedoms of religion (art. 18), expression (art. 19), assembly (21) and association (art. 22), as well as the right to take part in the conduct of public affairs in one’s own country through direct elections or through representation by using the voting systems and access to public services (art. 25).

The manner in which these rights are framed in this Covenant makes it clear that most of them are subject to limitations. For instance, the freedoms of assembly and association may be restricted if this is “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others” (art. 21 and 22(2) respectively). The exercise of religious freedom can be restricted by law when it is necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (art. 18(3)). Freedom of expression entails recognizing “duties and responsibilities” and can be restricted to protect “national security or of public order, or public health or morals” or to ensure respect for “the rights or reputations of others” (art. 19(3)(a) & (b)). What is more:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (art. 20 (2))

There are very few rights which should not be subject to restriction. They are listed in article 4 of the Covenant. They include the protection of life, protection from slavery, torture, cruel and inhuman treatment and punishment, immunity from double jeopardy and from imprisonment for not fulfilling contractual obligations, recognition of the person by law, and religious freedom in principle (articles 6, 7, 8 (I & 2), 11, 15, 16 and 18). Freedoms are recognized in a manner that makes them limitable. The grounds for restricting them are recognized by the regime of rights. This is why we speak of ‘the right to the freedom of expression or assembly or movement or religion. This is also why the political world chose the expression human rights rather than human freedoms as the title of the regime of rights. This suggests that the Libertarian position which calls for rights to be based on freedoms has been rejected since it is the regime of right which determines which freedoms are to be accepted as legitimate and how they should be exercised or not exercised.

Relating civil and political rights to democracy: Democracy is obviously inconceivable without civil and political rights. The notions of ‘the will of the people’, ‘popular sovereignty’ or ‘government by the people, of the people and for the people’, all lose their meaning without civil and political rights. If there is no protection of life or security, if liberty and equality are disregarded democracy will only have symbolic importance. To establish and sustain democracy it will be necessary to freely express opinions, by collecting the necessary information and distributing this to the other members of the society, to associate with one another (through the formation of political parties or associations) and to assemble to discuss political issues of interest. It is only when these political rights are respected and promoted that the members of the national community are able to manifest their will in choice of who should govern – i.e. by casting their votes, without constraint and discrimination, in free and fair elections.

In short, it is the effective exercise of civil and political rights which creates the conditions for empowering the citizens, to be able to choose their government, and to monitor how public affairs are conducted by their government. This way, the wishes of the citizens could be heard from within by tolerating inclusiveness in decision-making processes. This paves the road to the emergence of ‘government by the people, of the people and for the people’ and popular sovereignty. If the government does not operate in transparent ways by responding to the needs and desires of the people, then democracy is a sham. This is why the acknowledgement of “the will of the people” as the basis for government, in article 21 of the Universal Declaration of Human Rights, has been described as not just a revolution but “a ‘revolution within a revolution’”.[121]

One of the cornerstones of democracy, which is acknowledged in article 26 of the Covenant on Civil and Political Right, is the notion of equal rights and non-discrimination. According to this provision:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

This principle is well anchored in this covenant. Under article 2 (1) of this instrument, the states parties to this Covenant have assumed the obligation “to respect and to ensure” all the civil and political rights that are mentioned therein “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Article 3 of this covenant also requires ratifying states to “…ensure the equal right of men and women to the enjoyment of all civil and political rights”.

The other democratic value that underpins the covenant on civil and political rights is the idea inclusiveness, which should be achieved through participation in political processes. This idea follows from paragraph 3 of article 21 of the Universal Declaration on Human Rights which considers “the will of the people” as the basis for “the authority of government” and calls for the use of “periodic and genuine elections … based on universal and equal suffrage .. or by equivalent free voting procedures”. The first paragraph of this same provision also acknowledges the importance of ensuring participation in government “directly or through freely chosen representatives” with “equal access to public service in (one’s own) country”. This idea is re-affirmed in article 25 of the covenant on civil and political rights which acknowledges the citizen’s rights to:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

The universal validity of this political right is evident from the wider acceptance it has received under many other human rights conventions which prohibit various forms of discrimination that imposes limits on political participation. For instance, paragraph C of article 4 of the Convention on the Elimination of Racial Discrimination calls for the elimination of racial discrimination affecting the exercise of “(P)olitical rights, in particular the right to participate in elections— to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service”. Article 7 of the Convention on the Elimination of Discrimination Against Women also calls the elimination of gender-based discrimination “in political and public life”, including restrictions on the rights of women to vote in elections as well as “(T)o participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions.”

Similar stipulations are included in the regional conventions. Examples include article 23 of the 1969 American Convention on Human Rights, article 3 of the first Protocol to the 1950 European Convention on Human Rights, article 13 (1) of the 1981 African Charter on Human and Peoples Rights and art. 29 of the 1999 Commonwealth Independent States Convention on Human Rights and Fundamental Freedoms. The 1994 Arab League Charter of Human Rights considers “the people” as “the source of authority” and acknowledges that the citizen has “political capacity” (art. 19) and “the right to occupy public office” (art. 33). In view of all these it is difficult to question that the right to be represented in the government is now clearly recognized in international law.

 The challenges of relying solely on civil and political rights

As clarified above, the merits of relying on civil and political rights to promote or measure democracy are obvious. Using only civil and political rights as a benchmark reduces democracy to nothing more than a political system with institutional framework for electing the ruler. It also reduces the significance of the rights to the freedoms of expression, assembly, association, or the very purpose of having an electoral and multi-party systems, or equality, inclusiveness and participatory rights. It makes one wonder why people have to choose a government which oppresses them or which shields their oppressors? If ‘less government’ is the formula for democracy, as suggested by normative individualism, then there is no government ‘for the people’ and what is in place is a government for the politically and economically dominant social groups.

The point in recognizing the freedoms of expression, association, assembly and voting rights is to enable people to secure their basic human needs – such as work, access to health or educational services, freedom from discrimination and corruption, and inclusion in social life. When people collect information and exchange views with others and use their voting rights during elections, what motivates them to exercise these rights is to secure their aims linked to survival rather than for sake of exercising rights and freedoms. If there were no government that is ready to help them achieve these goals and to respond to their collective needs, then the exercise of these political rights would have mainly symbolic significance. Unfortunately, this is why voting turnout are dwindling in many places because the citizens see no point in taking advantage of these opportunities. When they feel that there no government for them they lose confidence in democracy.

Civil and political rights are also being used in many places to threaten democracy. Example of this includes the protection that is given to the rights of individuals and groups who promote Neo-Nazi, Neo-Fascist and White Supremacy ideologies. After decades of tolerance to the freedoms of expression, assembly, association and voting rights of the members of these kinds of organizations, these groups are now poised to challenge the traditional political parties and to win political elections through democratic means. Some of these political parties are already accommodated in the process of governing in some of the Western countries. The Covenant on Civil and Political Rights clearly prohibits, in article 20 (2), “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Yet, in these countries the protection of the political rights of these kinds of organizations appear to be more important than protecting the social groups which they target and the values of democracy.

The reliance on the lenses of civil and political rights to measure democracy in the multi-ethnic countries of the Third World also highlights challenges to democracy. In many of these countries, where the states are weak and unable to meet the needs of their citizens, individuals exercise their civil and political rights by promoting the economic, political, social and cultural interests of their own communities. This ‘self-centered’ or localized approach to the exercise of civil and political rights perpetuates narrow collecting thinking, exacerbating group rivalries and tensions instead of facilitating nation-building and displaying loyalty to the state. Some use these rights to mobilize for autonomy or self-rule for their linguistic, cultural or religious groups. If these ways of exercising civil and political rights are not checked, there is a risk that the socio-political fabrics of these states will be torn apart. This tendency is less visible in the developed Western countries because their states are strong and able to meet the needs of their citizens and because their ways of life are more compatible with normative individualism.

Applying the UN HRBA to democracy: the lenses of economic, social and cultural rights

Opponents of normative individualism prefer to see democracy promoted and measured by the extent to which the needs and interests of the political community, without neglecting marginalized social groups. This includes by considering efforts made by governments to address economic, social and cultural problems and to create the conditions necessary for the exercise of economic, social and cultural rights the members of the national community without discrimination. They dismiss the arguments used by the critics of economic, social and cultural rights to reject or belittle the legitimacy of these rights. These critics advance different reasons when rejecting these rights, including by stating that they are vaguely formulated in the laws and impractical, not least because of they cannot be claimed or because they entail high economic cost. The defendants of these are argue that if these same tests were applied to civil and political rights, they too would fail the test of legitimacy. As they see it, all rights are socially constructed and can be claimed if desired. They are also vaguely formulated and their realization entail cost one way or another.

The Universal Declaration of Human Rights recognizes both these sets of rights. The preambles of the two international covenants underscore the point that all these rights are derived from the needs of protecting the dignity and worth of human beings. Further, operative paragraph 5, part I of the 1993 Vienna Declaration on Human Rights makes it clear that civil, political, economic, social and cultural rights are “indivisible and interdependent and interrelated”. Thus, the UN cannot afford to ignore economic, social and cultural rights when it addresses issues of democracy issues. Under article 1 of its Charter the UN assumes the obligation to promote human rights, conditions for economic and social development and the respect for the rights of peoples to self-determination. Article 55 also mentions the obligations assumed by the UN to promote the ‘conditions’ that are necessary for ‘well-being’ and for promoting “higher standards of living, full employment, and conditions of economic and social progress and development”. When the UN meets these obligations, its members are expected to cooperate individually as well as collectively as pledged under article 56 of the Charter.

In the pursuit of these mandates, the UN adopted a range of human rights instruments recognizing economic, social and cultural rights. This is obvious from the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Migrant Workers and the different conventions prohibiting discrimination. The ILO, UNESCO, WHO and the regional organizations too have acknowledged the legitimacy of economic, social and cultural rights by adopting specific instruments and are seen actively engaged in promoting and monitoring their implementation.

The concern for economic, social and cultural questions has both individual and collective dimensions. Example of the latter is the manner in which the rights of peoples to self-determination is promoted, including by promoting the pursuit of economic, social and cultural development. When this group rights is achieved, the individual members of the national communities will be able to enjoy and exercise their economic, social and cultural rights. The right to development another group right that is recognized in the 1969 declaration on social progress and development, and the 1986 declaration on the right to development, as individual and group rights. The UN has been promoting both these two aspects of the right to development in the course of promoting democracy.

The specific economic, social and cultural rights which are recognized by the Universal Declaration of Human Rights include the rights to own property (art. 17) and to work (art. 23). By the latter, what is meant is not forced labor but work that is chosen or accepted freely by the person concerned. Moreover, this work should also be performed under “just and favourable conditions”, under conditions that guarantee fair wages and right to establish and join a trade union (art. 23). The social rights that are recognized include those which are necessary for a way of life which is indispensable for one’s dignity (Art. 22), the right to education (art. 26), and the right to “a standard of living adequate for the health and well-being of the individual … including food, clothing, housing and medical care” (art. 25).  In addition, recognition is also given to the right “to participate in the cultural life of the community” (art. 27).

The legal obligations of states to acknowledge and promote these economic, social and cultural rights are clearly mentioned in the Covenant on Economic, Social and Cultural Rights and the other conventions which protect vulnerable groups. For instance, article 2 of the Covenant on Economic, Social and Cultural Rights, requires the ratifying states are not only obliged to promote the full enjoyment of these rights by using the resources at their disposal. This requires formulating clear economic, social and cultural policies, strategies and adopting the necessary measures. Further, these states are required to ensure that there will not be discrimination in the enjoyment of these rights. The manner in which these obligations are discharged require the adoption of sound systems of governance. How states comply with these obligations is monitored by UN bodies and programmes (e.g. by the UNDP), by the treaty committees (e.g., the Committee on Economic, Social and Cultural Rights), the regional human rights bodies and by some of the specialized agencies. For instance, the ILO monitors work related rights, UNESCO monitors rights related to culture and education and WHO monitors rights relating to health. This is done by assessing the available statistical data, on the level of unemployment, school enrollment, infant mortality, malnutrition, and prostitution; as well as by considering how health services are promoted, the extent to which social security is provided, and the availability, affordability and accessibility of food, housing, water, cultural heritage sites and museums. All these monitoring bodies give special attention to how states comply with the requirements of promoting inclusiveness and effective participation. The cumulative effect of monitoring how these obligations are complied with promotes democracy in substance.

This is in no way intended to suggest that the road-map for promoting substantive democracy is strait forward and easy. The mere fact this area concerns governance creates tensions between this right-based approach to promote democracy and the principle of sovereignty. The UN cannot compel states to cooperate in implementing the policies which it advocates. This is why the UN itself denies that it uses a specific model of democracy. National deficits in the promotion of the economic, social and cultural rights can also be caused, at least in part, by external factors. A good example of this is imposition of Structural Adjustment Programs on developing countries by the World Bank and IMF, requiring these countries to reduce investment in the educational and health sectors. Engaging with globalization also requires deregulation, privatization, and weakening of trade unions. This means without international cooperation it may not be easy to resolve economic and social problems and hence the full realization of economic, social and cultural rights. It is therefore no wonder that article 28 of the Universal Declaration on Human Rights considers the creation of a just international order as necessary if human rights are to be fully realized.

Conclusion

Democracy and human rights are very appealing and politically sensitive complementary ideals, which people have both aspired to and fought for over the centuries. Paradoxically, while being universal ideals, they are also perceived and practiced differently. What makes them ideologically and politically contentious are disagreements over the nature of the human being, how s/he relates to the community and the state, what kind of individual rights and freedoms should be acknowledged and whether these rights should be subordinated to the interests of the community. Resolving the differences of opinion on these questions has always proved to be difficult because they are related to questions regarding the kinds of social and political systems and orders that humans should aspire to. Different political systems recognize or deny the legitimacy of different political, economic and social interests, and have different views on which rights and freedoms that should be protected. It is, therefore, no surprise that states, political actors and many writers have resigned themselves to simply agreeing to disagree. Rather than engaging in debate they dedicate themselves to glamorizing their own political systems, as the best model for democracy, and endlessly ridiculing or discrediting the systems used by their protagonists.

This, in part, is why the literature on democracy is in turmoil. It explains why democracy is equated with ‘legitimate rule’, ‘government of the people’, ‘the will of the people’ or ‘the rule by the majority’, ‘popular sovereignty’, ‘government by the people’, ‘government for the people’ or combinations of some or all of these. Although all these formulations legitimize power in the name ‘the people’, it is not always the case that all members of this ‘people’ are empowered by and benefit from the proposed political system. This is why some of these proposals are dismissed by their critics as symbolic or sham democracy or as democracy ‘in form’ only, while others are called ‘true democracy’ or ‘democracy in substance’.

The literal meaning of the term ‘democracy’, in Greek, is the rule, authority or government of the people. The ancient Greek city states are said to have used this political system of governance as a means of allowing the governed to rule themselves. In fact, not all the inhabitants of these city states were able to participate in political life. Slaves and women, for example, were now empowered to do so. Likewise, those who claim that modern democracy is linked to the experience of the American and French Revolutions are ignoring the fact that the beneficiaries of the ‘rights of man’ which were proclaimed by these Revolutions did not empower the slaves, women, indigenous groups or their colonial subjects. Democracy was more of an ideal for the people, rather than a political reality.

It is the emergence of the United Nations, with its mandates to promote human rights and the rights of people to self-determination, which led to the modern concept of democracy if this concept is to be understood in the sense of governance of the people as the word suggests. The road-map that was used to this effect was twisted since there were two traditional political currents that were competing to shape it. They were and still are normative individualism (the Liberal and Libertarian position) and collectivism (the Socialists, Social Democrats, Communitarians and traditionalists approaches). Navigating between these currents, the UN ended up by accepting something from both of them. On the one hand, it identified democracy as human rights by incorporating in article 21 of the Universal Declaration of Human Rights, and using the bottom-up approach later when the HRBA was developed by empowering the individual members of the political communities (in contrast to the restrictive model of promoting the historical ‘rights of man’ of few citizens). On the other hand, this organization proceeded by recognizing the existence of ‘peoples’ (demos), and by promoting their rights, including the right to self-determination and developing guidelines for how sound governance (cracy) should be promoted. This rights-based and double-sided approaches was intended to assure democracy in form as well as in substance. The former uses the lenses of civil and political rights and the latter is advanced by promoting economic, social and cultural rights, and the right to development and sound governance. This is what the professed goals of the Human Rights-Based Approach are about.

Because democracy has sensitive political, economic, social and cultural dimensions most states may well be unwilling to cooperate with the use of this HRBA to measure democratic conducts. This is in part because states incorporate a wide range of economic, social, political and cultural structures, making it difficult to use a single measurement tool for all cases. Further, as long as the principle of sovereignty permits states to refuse to ratify human rights conventions, serious doubts must arise regarding the legitimacy of using conventions which they have not accepted to measure their progress towards democracy. This, apparently, is why the UN relies on the Universal Declaration on Human Rights to promote the HRBA since this document, by contrast to the two international covenants, recognizes civil, political, economic, social and cultural rights as being inter-related and inter-dependent.

 

Endnotes

* Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This paper represents a revised version of two earlier conference presentations. The first one, on “human rights, democracy and peace: the implications of the new challenges”, was presented in the workshop which was organized in Jyväskylä (Finland) in August 2017, by the Academy of Finland, the University of Jyväskylä, Kone Foundation and The Åland Islands Peace Institute. The second paper was presented in the winter session of the Nordic Summer University, in Copenhagen, earlier this year on the topic of “Dysfunctional Democracies, Empowerment and the Human Rights Based Approach”. I am grateful to the organizers of these two workshops for enabling me to benefit from these valuable academic gatherings. Special thanks goes Mogens Chrom Jacobsen, who was kind enough to invite me to workshops of the Nordic Summer University and to the Honorable, Reverend Doctor Ezra Gebremedhin for commenting on this manuscript.

[1] Vienna Declaration and Programme of Action, part. I, operative paragraph 8

[2] Ibid.

[3] Ibid.

[4] UN, Democracy, http://www.un.org/en/sections/issues-depth/democracy/index.html Seen on October 30, 2018

[5] Declaration on Social Progress and Development, A/Res/2542 (XXIV) 11 December 1969.

[6] Thesaurus, dictionary.com

[7] Cambridge Dictionary

[8] https://www.merriam-webster.com/dictionary/democracy

[9] Susan Marks,” The End of History? Reflections on Some International Legal Theses”, European Journal of International Law, Vol. 8, Issue 3, 1997 p. 449.

[10] https://www.merriam-webster.com/dictionary/democracy.

[11] Aristotle, Politics, trans. H. Rackham (Cambridge: Harvard University Press, 1959), Vol. 5, p. 403 (v.3-5).

[12] USHistory.Org, The Declaration of Independence, available from the web in,  http://www.ushistory.org/declaration/document/

[13] The History Guide, Declaration of the Rights of Man and the Citizen (August 1789), art. 2, in http://www.historyguide.org/intellect/declaration.html

[14] Article 2 of the 1958 French constitution.

[15] Jack Donnelly, “Human Rights, Democracy, and Development”, Human Rights Quarterly, Volume 21, Number 3, August 1999, p 615. See also Anthony H. Birch, The Concepts and Theories of Modern Democracy. Routledge London, 1993 (1996 reprint), p. 45. In the view of the latter, democracy is about form, i.e. the existence of political institutions. and not a question of substance, i.e. whether or the community as a whole governs itself. “The idea that there was a classical doctrine of democracy is,” he wrote, “in fact, a most unhelpful piece of nonsense”. Ibid., p. 52.

[16] Webster’s Encyclopedic Unabridged Dictionary of the English Language (New York: Gramercy Books, 1989); The Oxford Illustrated Dictionary (Oxford: Clarendon Press, 1975); Jewett’s Dictionary of English Law, Vol. 2 (London: Sweet and Maxwell Ltd., 1977); and A Dictionary of Modern Legal Usage, 2nded., Bryan A. Garner (Oxford University Press, 1995).

[17] Cassell’s Latin Dictionary, D.P. Simpson (New York: Macmillan, 1957).

[18] Ballentine’s Law Dictionary, 3rded., William S. Anderson ed., (Rochester: The Lawyers Cooperative Publishing Co. 1969): Black’s Law Dictionary, Bryan A. Garner ed., 7th ed., (St. Paul: West Group, 1999).

[19] Black’s Law Dictionary

[20] Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, Vol. 2, C.H. Oldfather & W.A. Oldfather, trans. 1688 ed. (New York: Williams S. Hein & Co., 1995), p. 1367.

[21] I. Kant, “The Science of Right,” in Great Books of the Western World, R. M. Hutchin et al(eds.),  (Chicago: Encyclopaedia Britinnica, Inc., 1952), Vol. 42, pp. 436 and 452.

[22] L. Oppenheim, International Law: A Treatise, Vol. I – Peace, 7th ed., H. Lauterpacht, ed., (London: Longmans, Green and Co., 1948), p, 114, §64.

[23] Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925), p. 312.

[24] John Stuart Mill, “On Liberty, representative Government & Utilitarianism”, in Great Books of the Western World, Robert Maynard Hutchins, et al(eds.), (Chicago: Encyclopaedia Britannica, Inc., 1952), Vol. 43, p. 269. Emphases original.

[25] Thomas Hobbes, Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}), p. 86.

[26] Ibid.,pp. 84-86 & 99-100.

[27] Ibid.,pp. 85-88 & 101-102, and 116.

[28] John Locke, “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35, pp. 26-27.

[29] Ibid.,pp. 28-29.

[30] Ibid., pp. 26-30, & 46-47.

[31] I. Kant,The Science of Right” in Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952), p. 435 (Author’s Emphasis)

[32] Ibid.,pp. 435 & 437.

[33] Ibid., p. 436.

[34] Jean-Jacque Rousseau, The Social Contract and Discourses, G.D.H. Cole, trans. (London: J.M. Dent and Sons Ltd., 1913, 1977 prt), p. 193.

[35] Ibid., p. 15. See further 41, 165, 170-1.

[36] Karl Marx, Early Writings, translated by Rodney Livingstone and Gregor Benton, Middlesex: Penguin Books, Ltd., 1975 (1977 prt.). 350.

[37] Ibid., p. 349.

[38] Ibid.

[39] Ibid., pp. 229-230.

[40] Ibid., p. 230.

[41] Karl Marx “Critique of Hegel’s Doctrine of the State” in Early Writings, Rodney Livingstone trans. (London: New Left Review, 1975, 1977 prt.) p. 194.

[42] Karl Marx, “The Charists”, in Surveys from Exile:  Political Writings, David Fernbach, ed. (London: New Left Review, 1973), p. 194. p. 265.

[43] See the letter of Marx to Engels, 11 February 1865, in K. Marx, F. Engels and V. I. Lenin, Selected Correspondence (Moscow: Progress Publishers, 1975), p. 153. See also the letter of Marx to Engels, dated 18 Feb. 1865, in Karl Marx & Friedrich Engels, Correspondence: 1846-1895.A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?), p. 193.

[44] Karl Marx, Early Writings, pp. 232 and 234.

[45] Ibid., pp. 232-4.

[46] See V.I. Lenin, Collected Works, Bernhard Isaac, trans (Moscow: Progress Publishers, 1964, 1977 prt.), Vol 20, 1913-14, pp. 401-2 & 412; and, The Rights of Nations to Self-determination (Moscow: Progress Publishers, 1951,1971 prt) Progress Publishers, translation.

[47] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), p. 32. Any Rand, whose original name was Alisa Zinovyevna Rosenbaum, left Russia when she was 26, disappointed by what the Bolshevik Revolution had done to her country.

[48] Ibid., p. 123.

[49] Ibid. p. 33.

[50] Ibid. p. 32.

[51] Ibid. p. 34.

[52] Ibid. p. 122. Original italic.

[53] Ibid. p.126.

[54] Ibid. p. 124.

[55] Ibid. p. 137.

[56] Ibid. p.130.

[57] Ibid. p.131.

[58] Ibid. p. 134.

[59] According to Fernando Teson, liberalism is “a theory of politics founded upon individual freedom, respect for individual preferences, and individual autonomy”, Fernando R.  Teson, “Kantian Theory of International Law”, Columbian Law Review, Vol. 92, 1992, p. 54, note 4. This position considers the end of governments and states to the protection of the rights and interests of individuals, and traces its root to the works of Kant in his essay on Perpetual Peace. Ibid., p. 54. For Anthony Arbaster, “Liberalism was inaugurated by the French Revolution. Anthony Arbaster, Liberalism and postmodernism”, in James Meadowcroft, ed. The Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996), p. 162.

[60] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, p. 20. Note that this Donnelly does not dismiss the idea that rights can be exercised collectively, p. 21.

[61] Ibid. p. 70.

[62] Ibid. p. 69.

[63] Ibid. p. 21.

[64] Ibid. p. 69.

[65] Ibid.

[66] Marks, Susan. “The End of History? …, p. 470. According to Birch there never was “a classical doctrine of democracy” to speak of. See Birch, note 15 above. For views defending democracy in substance see, Cerena, M. Christina. “Universal Democracy: An International Legal Right or the Pipe Dream of the West?” New York Universal Journal of International Law and Politics, Vol. 27, 1995, p. 126.

[67] Donnelly, Universal Human Rights, p. 73.

[68] Ibid. p. 103.

[69] Ibid. p. 87.

[70] Will Kymlicka, Liberalism, Community and Culture(Oxford: Clarendon Press, 1989), p. 254.

[71]  Ibid., p. 4.

[72]  Ibid. p. 254.

[73] Ibid.

[74] Birch, p., 133.

[75] Michael Waltzer, “The Communitarian Critique of Liberalism”, in Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995), pp. 62-63. This writer wonders where this ‘solitary’ and ‘heroic’ individual which Liberal intellectuals write about comes from, since it appears that s/he “is fully formed before the confrontation begins.” p. 68.

[76] Brian Lee Crowley, The Self, the Individual, and the Community (Oxford: Clarendon Press, 1987), pp. v, and 255.

[77] Ibid., , p. vi. Liberals “require us to conceive of ourselves in ways which conflict with our understandings of reason and responsibility” he added, “and therefore conflict with our deepest moral sense”. Ibid.,  p. 220.

[78] Ibid., p. 281.

[79] Ibid., citing Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: 1982) p 132.

[80] Alasdair MacIntyre, After Virtue (London: Duchworth, 1981{2007}) 3rd ed. p. 220.

[81] Jean Bethke Elshtain “The Communitarian Individual”, in Amitai Etzioni, ed., New Communitarian Thinking…, p. 108.

[82] Alex Thomas,An Introduction to African Politics, 4th ed. (New York: Routledge, 2000{2016}), p. 254.

[83] Martti Koskenniemi, “Intolerant Democracies: A Reaction”, Harvard International Law Journal, Winter, Vol. 37, 1996, p. 234.

[84] The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843, by John Bowring), Vol. III, pp. 218-220..

[85] Ibid., p. 221.

[86] Ibid., p. 159

[87] J. Bentham, An Introduction to the Principles of Moral and Legislation (Oxford: Clarendon Press, 1789 {1823 prt.}), p. 4.

[88] 1814 Constitution of Norway, see https://www.stortinget.no/en/Grunnlovsjubileet/In-English/The-Constitution—Complete-text/

[89] 1848 Liberian Declaration of Independence, see, Declaration Project, in http://www.declarationproject.org/?p=181

[90] Constitution of Mexico, 1917, in LatinAmericanStudies.org, in http://www.latinamericanstudies.org/mexico/1917-Constitution.htm

[91] 1937 Constitution of Ireland, in, Wikisource, https://en.wikisource.org/wiki/Constitution_of_Ireland_(original_text)

[92] U.S. Congressional Record, Vol. 54, Senate, p. 2, pp. 1742-1743.

[93] “British Labour’s Message to the Bolsheviki”, New York Times Current History. February1918, pp. 206-7.

[94] Eyassu Gayim, The Principle of Self-Determination: A Study of Its Historical and Contemporary Legal Evolution.Norwegian Institute of Human Rights, Publication no. 5, 1980, pp. 12-15.

[95] Franck, Thomas M. “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, 1992, pp. 46-91.

[96] Resolution 217 C(III), which was adopted at the same time as the Universal Declaration on Human Rights made it clear that “United Nations cannot remain indifferent to the fate of minorities” and will deal with this matter later after a thorough study was made concerning the problem.

[97] Resolution 421V (D) of 4 December 1950.

[98] Resolution 545 (VI) 5 February 1952 and 549 (VI) 5 February 1952

[99] Resolution 637(VII) 20 December 1952

[100] Resolution 421 (V), E preamble 4 December 4, 1950

[101] Ibid, E. operative paragraph 7.b.

[102] Operative paragraph 13, Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

[103] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[104] UNICEF, Human Rights-Based Approach to Programming, https://www.unicef.org/policyanalysis/rights/index_62012.html

[105] The Rio Declaration on Environment and Development, principles 1, 20 and 22 in UN Doc. A/Conf.151/26, Vol. 1, 1992 annex in http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[106] Vienna Declaration and Programme of Action Part I, operative paragraph 10

[107] http://www.unsystem.org/tags-hlcp/human-rights

[108] http://www.unsystem.org/content/2005-world-summit-outcome-human-rights-democracy-and-rule-law; &  http://www.unsystem.org/tags-hlcp/human-rights

[109] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[110] UN HRBA Portal, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies, http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies

[111] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[112] See, Yearbook of the United Nations, 1952, p. 560, and also General Assembly, 10th session, Third Committee 669 mtg. p.226, para. 13.

[113] See UN Doc, E/2256, p. 7. Commission of Human Rights 8th session, April 14 to 16 June 1952, in Commission on Human Rights, Official Records, Report of the Eighth Session, Economic and Social Council, 14th session, Supplement no. 4. 1952.

[114] Declaration on Social Progress and Development, General Assembly resolution 2542 (XXIV) 11 December 1969.

[115] Permanent Sovereignty over Natural Resources, General Assembly resolution 1803 (XVII) 14 December 1962.

[116] Declaration on the Right to Development, General Assembly resolution 41/128, 4 December 1986, annex.

[117] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly resolution 47/135, 18 December 1986, annex.

[118] Declaration on the Rights of Indigenous Peoples, General Assembly resolution 61/295 of 13 September 2007, annex, arts. 3 & 4.

[119] Ibid., articles 11 – 14, 20, 25-26 and 31.

[120] E/1992, annexes IV, section, page 35. See also the Yugoslavia draft resolution in UN Doc.E/1992, annex IV, section A, article 10 b, p. 35, cited in the debate in the Commission of Human Rights 8th session, April 14 to 16 June 1952, Official Records, Report of the Eighth Session, Economic and Social Council, 14th session, Supplement no. 4. NY, UN, E/2256, p. 54.

[121] Allen Rosas, “Article 21”, in, Asbjorn Eide, Gudmundur Alfredsson and el al, eds., The Universal Declaration of Human Rights: A Commentary. Scandinavian University Press, 1993, p. 299.

 

References

Arbaster, Anthony. “Liberalism and postmodernism”, in James Meadowcroft, ed. The Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996).

Aristotle, Politics, trans. H. Rackham (Cambridge: Harvard University Press, 1959), Vol. 5.

Baruchello, Giorgio and Rachael Lorna Johnstone, “Rights and Value: Construing the International Covenant on Economic, Social and Cultural Rights as Civil Commons”, Studies in Social Justice,  Vol. 5, Issue 1,  2011, pp. 91-125.

Bentham, Jeremy. An Introduction to the Principles of Moral and Legislation (Oxford: Clarendon Press, 1789 {1823 prt.}).

Bentham, Jeremy.The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843), Vol. III.

Birch, Anthony H. The Concepts and Theories of Modern Democracy. Routledge London, 1993 (1996 reprint),

Cerena, M. Christina. “Universal Democracy: An International Legal Right or the Pipe Dream of the West?” New York Universal Journal of International Law and Politics, Vol. 27, 1995.

Crowley, Brian Lee. The Self, the Individual, and the Community (Oxford: Clarendon Press, 1987).

Donnelly, Jack. “Human Rights, Democracy, and Development”, Human Rights Quarterly, Volume 21, Number 3, August 1999.

Donnelly, Jack. Universal Human Rights in Theory and Practice(Ithaca: Cornell University Press, 1989).

Elshtain, Jean Bethke “The Communitarian Individual”, in Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995).

Etzioni, Amitai ed. New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995).

Franck, Thomas M. “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, 1992, pp. 46-91

Gayim, Eyassu. The Principle of Self-Determination: A Study of Its Historical and Contemporary Legal Evolution.Norwegian Institute of Human Rights, Publication no. 5, 1980.

Hamm, Brigitte L. “A Human Rights Based Approach to Development”, Human Rights Quarterly, Vol. 23, Number 4, 2001, pp. 1005-1031

Hobbes, Thomas. Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}).

Kant, Immanuel. The Science of Right” in Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952).

Koskenniem, Martti. “Intolerant Democracies: A Reaction”, Harvard International Law Journal, Vol. 37 Winter, 1996.

Kymlicka, Will. Liberalism, Community and Culture (Oxford: Clarendon Press, 1989)

Lenin, V.I., The Rights of Nations to Self-determination(Moscow: Progress Publishers, 1951, 1971 prt.) Progress Publishers, translation.

MacIntyre,  Alasdair.  After Virtue (London: Duchworth, 1981 {2007}) 3rd ed.

Marks, Susan. “The End of History? Reflections on Some International Legal Theses”, European Journal of International Law, Vol. 8, Issue 3, 1997.

Marx, Karl. Early Writings, translated by Rodney Livingstone and Gregor Benton, Middlesex: Penguin Books, Ltd., 1975 (1977 prt.).

Marx, K. “The Charists”, in Surveys from Exile:  Political Writings, David Fernbach, ed. (London: New Left Review, 1973)

Mill, John Stuart. “On Liberty, representative Government & Utilitarianism”, in Great Books of the Western World, Robert Maynard Hutchins, et al(eds.), (Chicago: Encyclopaedia Britannica, Inc., 1952), Vol. 43.

Rand, Ayn. The Virtue of Selfishness: A New concept of egoism(New York: The New American Library, 1962 {1964}).

Rawls, John. A Theory of Justice. (Oxford: University Pres, 1971 {1999} revised ed).

Rosas, Allen. “Article 21”, in, Asbjorn Eide, Gudmundur Alfredsson and el al, eds., The Universal Declaration of Human Rights: A Commentary. Scandinavian University Press, 1993.

Rousseau, Jean-Jacque. The Social Contract and Discourses, G.D.H. Cole, trans. (London: J.M. Dent and Sons Ltd., 1913, 1977 prt)

Taylor, Charles. “Liberal Politics and the Public Space”. Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995). ch. 11.

Teson, R. Fernando. “Kantian Theory of International Law”, Columbian Law Review, Vol. 92, 1992

Thomas, Alex. An Introduction to African Politics 4th ed. (New York: Routledge, 2000 {2016}).

UN, Democracy,  http://www.un.org/en/sections/issues-depth/democracy/index.html

UN HRBA Portal, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies, http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies

UNICEF, Human Rights-Based Approach to Programming, https://www.unicef.org/policyanalysis/rights/index_62012.html

United Nations High Commissioner for Human Rights, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (Geneva: United Nations, 2006)

Waltzer, Michael “The Communitarian Critique of Liberalism”, in Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995), ch. 5

WHO. A Human Rights-Based Approach to Health (Geneva: UNHCHR)

A Note on the Origins of Human Rights: Bartolomé de las Casas and Francisco de Vitoria

The present contribution arises from a remark made by Habermas with respect to two historical conditions that allowed for the appearance of human rights:

[O]n the one side, the internalized, rationally justified morality anchored in the individual conscience, which in Kant withdraws entirely into the transcendental domain; and, on the other side, the coercive, positive, enacted law which served absolutist rulers or the traditional assemblies of estates as an instrument for constructing the institutions of the modern state and a market society. The concept of human rights is a product of an improbable synthesis of these two elements. (Habermas, 2012, p. 83).

Habermas notes how these two elements had become independent in early modernity and, to begin with, developed along different paths (Habermas, 2012, p. 83). On the one hand, one result of Renaissance individualism and subsequent philosophy is the “internalized, rationally justified morality anchored in the individual conscience” mentioned in the above citation. This will be translated into a central principle of human rights: to protect individual autonomy as regards morality and convictions. In this way each person may – within the limits of due respect for other individuals – pursue a life of one’s own preference. This protection of the individual’s interiority is a central aspect of human rights and it is an essential part of constitutional rule. On the other hand – and this is the reason why Habermas speaks of an “improbable synthesis” – one consequence of the confessionalization of the state in the sixteenth and seventeenth centuries was that law, religion and morality were not open for discussion. All the subjects of a given monarchy were under the obligation to share the same faith and moral values, whereby no room was allowed for a subjectively reflected morality. Habermas’s hypothesis is that the modern state with its robust legislating, judicial and executive powers needs to crystallize before human rights can be implemented as a legally binding element.

Modernity is, in Habermas’s definition, the period that aimed at giving itself its normativity, that is, the period in history that has relied on human reason alone as a normative principle (Habermas, 1987). At the same time, Habermas’s later thinking has abandoned the classical modern notion that human reason is self-founded. Instead he has turned to the idea that “when reason reflects on its deepest foundations, it discovers that it owes its origin to something else. And it must acknowledge the fateful power of this origin, for otherwise it will lose its orientation to reason in the blind alley of a hybrid grasp of control over its own self.” (Habermas, 2006, p. 40). In keeping with this, Habermas considers that the notion of human rights has – just as many other ideas of modernity – its origin in the Judeo-Christian tradition. The absolute worth of any person, its inviolable dignity is the secular translation of regarding the human being as created in the image of God (Habermas, 2006, p. 45; Habermas, 2012, pp. 89-90). In Habermas’s words, the classical human rights declarations of the eighteenth century “betray their religious and metaphysical origins” (Habermas, 2012, p. 81).

In the evolution from absolutism to constitutionalism, one line that can be followed is that of the state’s consistency vis-à-vis its alleged religious principles. The absolute confessional monarchy imposed – as the term clearly expresses – one religion to be followed by all its subjects. However, in spite of the strongly cohesive force of one common religion, the confessional state would prove to be an unstable construction – among other reasons because of its assimilation of religion as a kind of state ideology. Precisely because the Christian tradition emphasizes the absolute worth and dignity of the individual, the confessional monarchies could easily enter into conflict with their alleged moral and religious principles – as will be seen in the following.

It is important to clarify that there is a difference between what is meant by rightin the medieval and early modern sense and what we today understand as civil/social/human etc. rights. In the scholastic terminology, ius(right) refers primarily to justice in the sense of what is just (iustum). This means the fair and equitable or the adequacy to the circumstances, for example the payment of a salary (Jacobsen 2011, pp. 152-153). In this sense, then, right is related to justice rather than to an individual, inviolable sphere. Conversely, the modern understanding of rights is the protection of the individual as regards the possibility of the state’s intervention(Habermas 2012, p. 79; Jacobsen 2011). This idea emerges with Francisco Suárez, who gives the notion of rights its modern subjective sense (Aubert 1987, p. 117), that is, the notion of an individual freedom that should be allowed to unfold as long as it does not collide with other individuals. At the same time, the evolution towards the notion of human rights has also another genealogy, as has been shown by the Mexican theologian and philosopher Mauricio Beuchot.  According to this thinker, Thomism is a key factor in the transition from rightas justice to rightsin the modern sense of the term. The Aristotelian-Thomist school considers that any society must be oriented towards the common good, and the common good requires a social justice in which every individual is given its due as regards both material and spiritual goods (in keeping with the individual’s age, health, capacities, etc.).[1] Such a social justice gives a dignified place to the individual in the totality of the community. However, a society that eludes the obligation to carry out such a distributive justice is an unjust society, and this was the injustice that was made to the original American peoples when they became conquered and enslaved (Beuchot 1994, pp. 149-155).[2] From this perspective, then, the question of human rights emerges from a concern for a collectivity that has been deprived of what is its due in the social totality.

In this article the intention is to pursue one of the historical moments in the development that allowed for the emergence of human rights: the controversy that took place in sixteenth-century Spain concerning the status of the indigenous peoples of America. This historical episode presents the conflict between the confessional state and an egalitarian tradition of thinking which confers on the human being an inherent dignity and on human society a necessary demand for justice.[3] The main points of reference below are the Spanish Dominicans Bartolomé de las Casas (1484-1566) and Francisco de Vitoria (1483-1546). Concerning the question of statehood, reference will be made to Heinz Schilling and his development of the notion of the confessional state. State confessionalization can be regarded as a parallel colonial enterprise in relation to the one overseas because when the ruler determines the religion of the subjects, a conquest of interiority takes place. In this respect, the discussions carried out by las Casas and Vitoria are remarkable because the fact that these two thinkers defended what today would be called the rights of the native peoples of the Americas shows that religion – also at that historical moment – can provide a critique of the exercise of power.

The contribution is organized as follows: first appears a presentation of Schilling’s ideas about the confessionalization of the state in Early Modernity; then follows a commentary on the thinking of las Casas and Vitoria as regards the Spanish colonization of the Americas; finally – in the conclusions – a perspective is drawn up to the present situation. The part on las Casas and the part on Vitoria are rather different. The reason for this is that the two were very different personalities with correspondingly different legacies. Las Casas was an erudite theologian with great rhetorical skills but, since his main interest was to obtain justice for the original inhabitants of America, he never wrote a systematic body of speculative texts (Beuchot 1994, pp. 71-72). His life and his texts form a continuum, and for this reason his works must be read in the context of his tireless advocacy for the Amerindian peoples. Vitoria, conversely, was a professor of theology who worked in an academic setting his entire life, whereby he in this sense is a more conventional author.

The Confessional State

During the sixteenth and seventeenth centuries the modern territorial states emerged in Europe. As part of this process, the nobility, the Church, cities, military orders, etc. lost their autonomy and power while, conversely, the monarchy was strengthened. A modern state is generally understood as a geographically limited territory in which only one political authority has the power of legislating and using force (Morris, 1998).In Max Weber’s famous formulation from 1919, “a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” (Weber, 2009, p. 78)..Consequently, it was also at this historical moment – after the Peace of Westphalia (1648) – that international authority was restricted to territorial states. The monopoly on sovereignty over territory and domestic affairs also made the states the only significant actors in the international system of power relations.

As regards religion, absolutism incorporated it as a kind of ideology. This is the confessionalization thesis defended by, among others, Heinz Schilling (2008). The obligation of all subjects to share the same faith formed a homogeneous collective identity.[4] In addition, the state achieved power over the Church, something which was evident in the reformed kingdoms but was also a fact in the Catholic nations.[5] From a perspective that considers religion in opposition to modernization, this socio-political change should unequivocally be considered anti-modern, but it can also be seen as a qualification for the emergence of modernity:

My hypothesis is that decisive preconditions for Europe’s turn onto paths of modernization were installed, not in opposition to the religious forces of confessionalization prevailing in that epoch, but closely intertwined with them, making the confessional approach epoch in Europe – namely the decades around 1600 – to be a “Vorsattelzeit der Moderne” (saddling up for Modernity). (Schilling, 2008, p. 14).

The reason for this is that the religious and secular domains, that in Christianity are theologically separate, now became intertwined “but in a way that gave each of them independence in its own sector or area of responsibility.” (Schilling, 2008, p. 16). In turn this simultaneous interweaving and independence caused a transference from the religious to the secular: “Secularization frequently drew its decisive inspiration from the Christian religion and philosophy and was sustained by religious movements. Again and again, a religious dynamic was transported into the secular world, where it gave power and legitimacy to both political and social activities.” (Schilling, 2008, p. 16).

As mentioned above with reference to Habermas, this is the historical background for the emergence of human rights. On the one hand, the dialectic mentioned by Schilling makes possible the transference of a Judeo-Christian idea to a secular sphere – as will happen in the eighteenth century with the human rights declarations. On the other hand, the strengthening of the state by means of religion would become a kind of Trojan horse carrying within it a moral concern that could be activated against the absolute monarchy – as happened with Bartolomé de las Casas and Francisco de Vitoria.

One consequence of the confessionalization of the state was that religious minorities had only a small possibility of being accepted. The ban on religious difference was clear in the case of Spain, where the convivencia(co-existence) of Jews, Christians and Muslims that had been possible during the Middle Ages stopped with precisely the emergence of the confessional state. In 1492 the Jews faced the ultimatum of converting or leaving the country. That same year the last Muslim dominion on the Iberian Peninsula, the Kingdom of Granada, was conquered by the Catholic monarchs, Isabella of Castile and Ferdinand of Aragon. In the capitulations written in connection with the surrender, the Muslim population was allowed to practise its religion, but a few years later, in 1502, this permission was suspended. Shortly after 1500, then, only Christianity was allowed as the official religion in what would become the kingdom of Spain.[6]

In this context it is noteworthy that theologians such as las Casas and Vitoria sustained that the Amerindian population should be allowed to maintain their original religions. This is remarkable in two ways. On the one hand, because the logic of confessionalization entailed that only one religion was allowed in the domains of a given monarch. On the other hand, because it would seem logical that one consequence of the assimilation of religious authority by the state would be to silence dissident voices. However, as will be seen in the following, this was not the case in the episode that will be commented upon below.

Bartolomé de las Casas

In 1510 the Dominican friars arrived on the island of Hispaniola (which today comprises the Dominican Republic and Haiti). They witnessed the treatment of the natives and decided to denounce it. In hisHistory of the Indies, las Casas narrates that

[t]he Dominican friars had already pondered on the sad life and harsh captivity suffered by the natives on the island and had noticed the Spanish lack of concern for their fate except as a business loss which brought about no softening of their oppression. (…) They knew how new and scandalous it would be to awaken people from such an abysmal slumber, and after mature reflection they decided to preach from the pulpit and in public that to oppress Indians was to go straight to Hell. (las Casas, 1971, pp. 181-83).

They composed a sermon in defence of the “Indians” – as the original inhabitants of America were called at that time – to be read on the fourth Sunday of Advent 1511 by Friar Antonio de Montesinos.[7]

Among those on whom this sermon made an impact was the young Bartolomé de las Casas, who would later become a Dominican friar, then bishop and, for posterity, be remembered as the most ardent defender of the native population of America. At that moment las Casas was a secular priest and colonist in the encomienda system that was established during the conquest. This quasi-feudal order meant that each colonist was entrusted (encomendar: to entrust) a number of natives. The colonist should care for their spiritual and material well-being, and in return they would work for him as bondservants. In practice, then, the Amerindians who were under an encomiendawere not at all free men.

Since the Dominicans would not cease to protest against the treatment the original inhabitants were subject to, the governor Diego Columbus (the discoverer’s son) and the encomenderos complained to King Ferdinand V, who regarded the Dominicans’ protests as a direct questioning of his authority. Consequently, he ordered that neither “they nor other friars of their Order speak upon this matter or others similar, in the pulpit or away from it, in public or in private.”[8] Furthermore, the Dominican provincial, Alonso de Loaysa, accepted the king’s admonition and repeated to the friars the prohibition to speak about this matter. In his admirable work Las Casas. In Search of the Poor of Jesus Christ, Gustavo Gutiérrez remarks the following as regards this conflict between the missionaries and state power:

While the historical and social context here is different from our own, we can only regard Loaysa’s demand (and not the friars’ preaching!) as an expression of the “captivity” of the Christian message. This, like many bishops and missionaries in the Indies, las Casas could not accept. Instead, the missionaries upheld the validity of the demands of the Gospel. (Gutiérrez, 1993, p. 37).

It is clear that, for the monarchy, the colonization process had priority over the missionary one, and that the revenue from the colonies was more important than a coherent religious practice. The forced labour of the natives was necessary for the extraction of gold – and thus everything else would be of secondary importance.

As a consequence of the protests, the king ordered the gathering of a council of theologians and jurists, the Junta de Burgos(Council of Burgos), in 1512. As an outcome of this council a set of rules were issued, the Leyes de Burgos (Laws of Burgos), which was the first legislative document regarding the Amerindian population.[9] Even if the Leyes de Burgos recognized that the native inhabitants were free subjects, at the same time the encomienda system became sanctioned and formalized. The consequence was, as Gutiérrez notes, that these laws in fact changed nothing, they only legitimized the oppression: “Thus the door was wide open for a reinforcement of the Indians’ de facto slavery, at the same time that lyrical declarations about their freedom were being made.” (Gutiérrez, 1993, p. 283).

One of the outcomes of the Junta de Burgos was the sadly famous Requerimiento (Requirement), written by the influential councilor Palacios Rubios as a consequence of Montesinos’s question: “What authority did you use to make war against them who lived at peace on their territories, killing them cruelly with methods never before heard of?” (cited in las Casas, 1971, p. 184).Montesinos’s question carried with it an accusation at a legal level because a just war can only be claimed on the basis of a previous affront. In order to respond to this, Palacios Rubios made use of the medieval theocratic political theory according to which spiritual power is different from but at the same time also superior to secular power. In consequence the pontiff must prevail over emperor and kings. While this theory clearly works against the development of the sovereign territorial state, it was used on this occasion to legitimize the Spanish rule over the American territories. Given that the pope had granted the Spanish monarchs the dominion over these territories in 1493 with the Alexandrine Bulls, King Ferdinand V was their legitimate ruler.[10] Palacios Rubios, furthermore, asserted that the violation of natural law, the absence of legitimate political authority (due to unbelief), and opposition to the proclamation of the Gospel were sufficient causes to wage a just war. However, before an act of war could actually be carried out, an antecedent notification of these arguments must be made. Thus the Requerimientowas produced in order to read aloud to the Amerindians encountered by the conquerors.[11]

Given that the theocratic viewpoint at that moment was not at all a dominant one (as will be seen below, Vitoria will argue very clearly against it), and given that the idea of the pope having actual power over the monarchs went counter to the emerging territorial state, it is clear that this strange juxtaposition of royalism and pontifical theocratism was enacted merely to justify the Spanish dominion over the American territories and their inhabitants. Aware of the harm it caused both to the natives as well as to Christianity, las Casas could not accept this document. When commenting upon the Requerimiento in his History of the Indies, he exclaims:

The ignorance of the King’s council is then manifest; I pray to God it is remissible – how unjust, impious, scandalous, irrational and absurd this injunction [the Requerimiento] was! I will not speak of the infamy it caused the Christian religion; I don’t know whether to laugh or cry at the absurdity of the council, who believed these people to be under more obligation to acknowledge the King as their Lord than Christ as God and Creator, since one cannot be constrained to receive the Faith, and yet, to obey the King, the council used force. (las Casas, 1971, p. 196).

As las Casas (Beuchot 1994, p. 48) and (as will be seen below) Vitoria argued, it is a matter of natural law that each people has its own rulers. Unbelief is not a cause to lead a just war against another people since the Gospel must not be forced upon anybody. Here emerges the conflict between the missionary – who knew that evangelization has to be undertaken by peaceful means[12] – and the monarchy, which was eager only to accumulate power, riches and territories. The faith cannot be forced upon anybody, but the fact that force was used to acquire new subjects and territories reveals the inconsistency of the confessional state because the monarchy did not act in keeping with the religion it adhered to.

In spite of the Leyes de Burgos and the monarchy’s clear standpoint, the natives’ advocates would not stop from arguing their case. Battles were won and lost. In 1530 Charles V, king of Spain and emperor of the Holy Roman Empire, prohibited the enslavement of the Amerindian population in a decree that had very little effect in the colonies and was subsequently revoked in 1534. During this period las Casas’s influence reached to the Vatican, since Paul III’s papal bull Sublimis Deus(1537) was considerably influenced by him(Parish, 1992; Gutiérrez, 1993, pp. 302-8). This document declared that the Amerindians were rational beings, completely human, that they were to be free from slavery, that they should be allowed to own property and that their evangelization must follow the peaceful method of preaching and good example. The bull was followed by a papal letter condemning the greediness of those who mistreated the native peoples and declaring the automatic excommunication of whoever oppressed and enslaved them.

Another important event in this dispute was Charles V’s approval of the Leyes nuevas de Indias(New Laws of the Indies) in 1542. These decrees abolished the forced labour of the native population, and thus substantially restricted the encomiendas. But when these laws were to be implemented in the New World, serious conflicts arose. The most notorious one was the uprising in Peru, where Gonzalo Pizarro (brother of Francisco Pizarro, the conqueror of the Inca Empire) led a rebellion in the course of which the viceroy was killed. A new viceroy arrived to Peru and Gonzalo Pizarro was arrested and sent to Spain to be judged for his uprising.

However, the outcome was that the Leyes Nuevas de Indiaswere never in fact implemented in the American colonies. Furthermore, Charles V revoked an important part of these decrees in 1545. As a reaction to this, las Casas, who since 1543 was bishop of Chiapas (what today is southern Mexico and Guatemala), wrote a proposal that is interesting with respect to the present discussion. Together with two other bishops, Valdivieso and Marroquín, he presented a document to the Audiencia de los Confines, the council representing the Crown in Central America. In this document he argued that the natives should be transferred under ecclesiastical jurisdiction so that their political self-determination could be restored.[13] Experience had proven to las Casas that the state would – in spite of its putative Christian identity – give priority to its expansion and enrichment rather than to Christian principles. As can be imagined, this proposal was rejected by the council.

The colonists and adherents of the conquest found in the humanist Juan Ginés de Sepúlveda (1490-1573) a spokesman who could argue their case. Sepúlveda was, according to the Argentinian philosopher Enrique Dussel, the “father of modern political philosophy” (Dussel, 2007, p. 195-99) because he was the first to formulate the idea that superior nations have the right to dominate inferior peoples in order to raise the latter to a more civilized stage.[14] Given that Dussel’s notion of modernity is closely connected with the European colonial enterprise, he regards las Casas as the first critic of the modern project. Dussel considers that through this expansion a new world-system appeared in which the Europeans understood themselves as the masters in military, economic, scientific and cultural respects.[15] This strongly Eurocentric world-system negated the otherness of the indigenous American peoples and of the African slaves. Against this background the figures of Sepúlveda and las Casas appear as representatives of, respectively, the Eurocentric and excluding paradigm, and the thinking that acknowledges alterity. Dussel sees in las Casas the most radical sceptic of the civilizing pretensions of modernity and thus also an example for the twenty-first century. (Dussel, 2007, pp. 199 and 206). Las Casas’s acknowledgment of the original inhabitants of the Americas led him to his activism, so to speak, against a state power that negated the Amerindians’ dignity by enslaving them and depriving them of their cultural and political autonomy.

In 1550 Charles V brought the Consejo de Indias (Council of the Indies) together with a committee of theologians and jurists to discuss the positions of Sepúlveda and las Casas. This debate, the Controversia de Valladolid,took place during the years 1550-51 and its outcome was unequivocally favourable to las Casas. However, the summary of the discussion reads:

Finally, after much debate, the (commission) judged that the expeditions, which in Spanish we call conquistas, are evil, unlawful, and unjust and, therefore, ought to be altogether outlawed in the future. However, concerning the allotments, which are called repartimientos[16] in Spanish, they made no decision because there was still rebellion by some of the oppressors in the kingdoms of Peru and other provinces were in a state of confusion. (las Casas, 1974, p. 9).

Thus the commission did not recommend giving freedom and political self-determination to the Amerindians – which was las Casas’s position – but it nonetheless condemned the conquest unequivocally. It is plausible to assume that state interests weighed too heavily to allow any changes as regards the American possessions. The Spanish crown was immersed in armed conflicts on the European continent and in the Mediterranean, and was highly dependent on the capital flow from the Americas. Once again the two logics, that of state interests and that of the missionaries, collided in a clear way. Following Gutiérrez, it is possible to assert that for las Casas

it is a matter of the rights of the individuals, indeed, but also – let us repeat – of the Indian nationsvis-à-vis the Western Christian countries that had undertaken the conquest and occupation of the Indian continent. What is at stake is not only individual rights, but, especially those of a whole people: here, their right to require that their religion, however mistaken it be, be respected. (Gutiérrez, 1993, p. 206).

Here Gutiérrez touches upon the double aspect – collective and individual – of the human rights. Since the Amerindians were rational beings – rationality being one primary facet of human dignity – it was unjust to impose Christianity upon them. Las Casas considered that the Christian faith was the most valuable good that could be given to the indigenous peoples, but he also believed that they had the right to remain in their paganism. It would be unjust as regards the native’s rationality to deprive them of their faculty of judgement with respect to religion. Similarly, he also rejected the argument that a just war could be fought upon the Amerindian peoples on the grounds of the human sacrifices some cultures carried out (las Casas, 1974, p. 234). In this way, the conquest of America was unjust because it negated the autonomy and idiosyncrasy of the indigenous cultures.[17] In the Lascasasianperspective, then, the subjugation of America had nothing to do with neither civilization nor religion but with a simple will to power. The oppression of the native peoples was perceived as an injustice because of the egalitarian Christian tradition he belonged to. This perspective called for the resistance against state power that las Casas embodied.

Francisco de Vitoria

Francisco de Vitoria is a central figure of the Spanish Renaissance. His work consists, on one side, of a series of lectures on Thomas Aquinas’s Summa theologicaand on Peter Lombard’s Sentences, and, on the other, of the Relectiones theologicae(1526-1543) in which he discussed different theological and juridical questions. It is thanks to theRelectiones that Vitoria is considered one of the founders of international law.

Vitoria sets out a universalistic vision of law since he conceives of the world as one commonwealth(respublica)governed by a common law, the law of nations (ius gentium).Vitoria was – obviously – no adherent to a social contract theory but considered human society as natural as any living organism: “The clear conclusion is that the primitive origin of human cities and commonwealths was not a human invention or contrivance to be numbered among the artefacts of craft, but a device implanted by Nature in man for his own safety and survival.” (Vitoria, 1991, p. 9). Correspondingly his law of nations is derived from natural law but enacted by the commonwealth of the world: “The whole world, which is in a sense a commonwealth, has the power to enact laws which are just and convenient to all men; and these make up the law of nations.” (Vitoria, 1991, p. 40). This idea is what has earned him the title – even if modern scholarship is divided as regards this claim – as the father of international law (e.g. Barcia Trelles, 1928; Scott, 1934).

Two of Vitoria’s Relectionesmention the question of the New World and the subjugation of the native peoples of the Americas. These lectures carry the titles De Indis (On the American Indians) from 1539 and De iure belli (On the Law of War) from that same year. However, as only De Indis treats the question of the conquest in depth, this text will be the focus of analysis here. The relectionconsists of an introduction, three discussions, a conclusion and three replies. In the first discussion the issue is whether the Amerindians had political authority before the Spanish conquest. After this follows a discussion of the illegitimate reasons (the “unjust titles”) that could be argued for the Spanish dominion over the indigenous peoples. Then follows an analysis of seven or eight legitimate grounds (“just titles”) that could be given for the subjugation of the Amerindians: “There are seven irrelevant titles, and seven or perhaps eight just and legitimate ones.” (Vitoria, 1991, p. 252).

In the relection’s first discussion Vitoria states that it is a universal issue that a people govern themselves. Any community may constitute itself with its rulers, institutions and laws, and this is not lost by diversity of religion or by sin because “Aquinas shows that unbelief does not cancel either natural or human law, but all forms of dominion (dominia) derive from natural or human law; therefore they cannot be annulled by lack of faith.” (Vitoria, 1991, p. 244). He furthermore dismisses the idea that a sort of tutelage of the Amerindians could be justified because that would presuppose that they were irrational and incapable of organizing their societies. On the contrary, the inhabitants of these nations possess the use of reason since

they have properly organized cities, proper marriages, magistrates and overlords (domini), laws, industries, and commerce, all of which require the use of reason. They likewise have a form (species) of religion, and they correctly apprehend things which are evident to other men, which indicates the use of reason. (ibid., p. 250).

The conclusion Vitoria arrives at is that the Amerindians were the true rulers of their societies before the arrival of the Spaniards. This poses a problem as regards the legitimacy of the conquest, which then will be discussed in the rest of the relection.

In the relection’s second discussion, Vitoria discards seven illegitimate reasons that could be alleged to justify the conquest of the Amerindian countries. These unjust titlesare: (1) because the emperor is the sovereign of the whole world, (2) because the pope has authority over the whole world, (3) by right of discovery, (4) because the natives refuse the Christian religion, (5) because of the Amerindians’ sins,[18] (6) by voluntary choice induced by ignorance or fear,[19] (7) by special gift from God.

Of these titles the most interesting in the present context is the second one. According to the above-mentioned theocratic theory the pope, as the vicar of Christ, has the authority to legitimise the occupation, as in fact had happened with the Alexandrine Bulls that divided the New World between Spaniards and Portuguese. To this, Vitoria responds that if Christ did not have temporal or worldly power, much less can the pope as his vicar have it (ibid., p. 260). In addition, the pope does not have spiritual jurisdiction over non-Christians, as can be inferred from St. Paul: “For what have I to do to judge them also that are without?”[20] Furthermore, and in contrast to the confessionalization process, Vitoria rejects that the Conquest could be legitimized as an occasion to bring the Gospel to the indigenous peoples because he considers – in line with many other theologians – that nobody should be forced to convert to Christianity. This part of the relectionconcludes that the conquest of America cannot be legitimized on these grounds, and the discussion of the unjust titles significantly finishes with a passage from the Gospel: “‘For what is a man profited’, says the Lord, ‘if he shall gain the whole world, and lose himself, or be cast away?’”.[21] In this way Vitoria alludes to the conflict between religion and state interests, suggesting that they may diverge.

In the last part of De Indis, Vitoria discusses the reasons that might legitimize the conquest and domination of America. These just titles are: (1) if the Spaniards were prevented from the right to travel and dwell in the native’s countries “so long as they do no harm to the barbarians” (Vitoria, 1991,p. 278),[22] (2) if the Amerindians “obstruct the Spaniards in their free propagation of the Gospel” (ibid, p. 285), (3) “the protection of converts” (ibid.p. 286) would be a legitimate cause if some of the Amerindians had converted and their rulers wanted to force them back to idolatry, (4) a “papal constitution of a Christian prince” (ibid. p. 287) could be claimed if a large number of the original inhabitants had converted, (5) “in defence of the innocent against tyranny” (ibid. p. 287) if tyranny or tyrannical laws inflict damage on innocents, (6) “by true and voluntary election” (ibid. p. 288), that is, if the inhabitants of these countries voluntarily decided to accept the Spanish king as their ruler, (7) “for the sake of allies and friends” (ibid. p. 289), that is, if a given nation asks the Spaniards for help because they have suffered an affront and thus have the right to wage a just war against another nation, finally, (8) “mental incapacity” (ibid.p. 290). This last reason is, however, only added “for the sake of the argument” (ibid. p. 290).

It is remarkable that Vitoria discusses these seven or eight just titles in a hypothetical way – in contrast to the unjust titleswhich are unquestionable. In this we follow Getino’s interpretation, who observes that the legitimate titles have a purely conditional validity for Vitoria (Getino, 1933, p. 165). This hypothetical procedure indicates uncertainty as regards the validity of the arguments in the specific context. It is striking that Vitoria abstains from concluding on the arguments given as just titles in relation to the actual conquest. He lists them as hypotheses without asserting whether they in fact apply in the specific situation.

An example is the second just title, if the other peoples “obstruct the Spaniards in their free propagation of the Gospel” (ibid.p. 285). To this, Vitoria remarks that this is a hypothetical case that is unlikely to have happened during the actual conquest: “All that I have demonstrated is that this method is lawful per se. I myself have no doubt that force and arms were necessary for the Spaniards to continue in those parts; my fear is that the affair may have gone beyond the permissible bounds of justice and religion.” (ibid. p. 286).

In the same way the other just titles are listed as possibilities that would apply if they were the case – but he does not assert that reality is in keeping with what he mentions as justified causes for the conquest. In addition, Vitoria mentions situations that evidently were not the case, as in the following passage with respect to the just title “of natural partnership and communication” (ibid. p. 278): “Since these travels of the Spaniards are (as we assume) neither harmful nor detrimental to the barbarians, they are lawful.” (ibid, p. 278).[23] Given that at this moment, in 1539, Bartolomé de las Casas’ writings and denunciations were widely known (furthermore Vitoria was a Dominican just as las Casas), and the conquests of Mexico and Peru had been consummated, it is a claim against well-known facts to state that the Spaniards had arrived to the New World without causing harm to the indigenous peoples. The parenthetical interpolation “as we assume” should thus be taken as a purely speculative presupposition without relation to reality. The same is the case when Vitoria, under the same title, discusses how the Spaniards should act when arriving to the indigenous peoples’ territories:

My fifth proposition is that if the barbarians attempt to deny the Spaniards in these matters which I have described as belonging to the law of nations (ius gentium), that is to say from trading and the rest, the Spaniards ought first to remove any cause of provocation by reasoning and persuasion, and demonstrate with every argument at their disposal that they have not come to do harm, but wish to dwell in peace and travel without any inconvenience to the barbarians. (ibid. p. 281).

This passage makes clear how Vitoria’s discussion is not based on facts but should be regarded as a theoretical reflection – given that the reality of the conquest diverged ostentatiously from this description.

In addition to this disturbing split between the historical facts and the assumptions taken in the relection, a closer look at the possible eighth just title can only cause perplexity. In the first place, Vitoria discusses a theme that he had already been through in the same relection. In the first part of De Indis, “On the dominion of the barbarians”, he considered that the Amerindians “are not in point of fact madmen, but have judgement like other men.” (ibid. p. 250). At that moment he, furthermore, asserted that the Amerindians “have properly organized cities, proper marriages, magistrates and overlords (domini), laws, industries, and commerce” (ibid. p. 250). However, now, in the discussion of this last uncertain title, he sustains that “they have neither appropriate laws nor magistrates fitted to the task. Indeed, they are unsuited even to governing their own households (res familiaris); hence their lack of letters, of arts and crafts (not merely liberal, but even mechanical), of systematic agriculture, of manufacture, and of many other things useful, or rather indispensable, for human use.” (ibid. p. 290).

Furthermore, it is very strange that Vitoria refuses to decide on this eighth title given the unambiguousness inherent to Scholasticism. In this tradition, any question discussed is given a clear and unequivocal answer. This is also Vitoria’s style of thinking; he never steps back from giving a clear assessment of the themes he treats. Why, then, does he state that as regards this question, “I myself do not dare either to affirm or condemn it out of hand”? (ibid. p. 290). This faint-hearted intellectual attitude is not at all recognizable in the rest of Vitoria’s writings. The reader’s perplexity becomes even greater if one considers that this eighth possible title is a position that had been ruled out two years before by Pope Paul III in the bull Sublimis Deus (1537).

After this strange impasse, Vitoria moves on to the conclusions, which are also surprising:

The conclusion of this whole dispute appears to be this: that if all these titles were inapplicable, that is to say if the barbarians gave no just cause for war and did not wish to have Spaniards as princes and so on, the whole Indian expedition and trade would cease, to the great loss of the Spaniards. And this in turn would mean a huge loss to the royal exchequer, which would be intolerable (ibid. p. 291).

Vitoria thus finally acknowledges the actual political situation in relation to the speculations that he or others might carry out, that is, he seems to realize that nothing that he could write would significantly change the Spanish rule in the New World. This interpretation throws a self-ironic light on the words at the end of the introduction: “In conclusion, I should regard it as something not unprofitable and fatuous, but an achievement of considerable worth, if I were to succeed in treating this question with the seriousness which it deserves.” (ibid. p. 238).

At the end of the relectionhe furthermore adds three “replies”, of which the first two argue in favour of withdrawing from the conquered territories whereas the last one argues against it. The first reply maintains that Spain could leave the dominion of the New World without fear of losing benefits because trade would be just as lucrative as possessing the territories in question: “Look at the Portuguese, who carry on a great and profitable trade with similar sorts of peoples without conquering them” (ibid. pp. 291-92). What reason could Vitoria have had to add this comparison with Portugal if not because he considered that this is how Spain should have acted towards the societies encountered in the New World?

The second reply adds to the first one “that royal revenues would not necessarily be diminished” (ibid. p. 292) if Spain allowed the indigenous peoples to rule their own territories because trade would continue and the Crown would maintain its income through the taxes put on the mercantile exchanges. However, the last reply turns to the question of the converted Amerindians and argues that “once a large number of barbarians have been converted, it would be neither expedient nor lawful for our prince to abandon altogether the administration of those territories.” (ibid. p. 292). In this way Vitoria gives, in extremis,a concrete reason for the Spanish crown to maintain its possessions. At the same time, it is also clear that this last reply does not in fact represent a legitimation of the conquest but is rather apost festum acknowledgment of the state of things. In addition, Vitoria does not argue that a status quo should be maintained. He asserts that it would be wrong “to abandon altogether” these territories, thus entailing that a degree of political self-determination should be given to the Amerindian peoples.

Vitoria’s conclusion parallels that of the Controversia de Valladolid(referred to above) a decade later. The conquest cannot be justified, but Realpolitikhas its own logic. In this way, Vitoria’s position is in line with las Casas’s in the sense that Vitoria – in spite of his ambivalences and speculations – argues the logic of religion and human dignity, not that of conquest and enrichment. It is remarkable how Vitoria upheld that the appropriate and just would have been the autonomy of the Amerindian societies; in this way he implicitly declared the conquest to be illegitimate. In support of this interpretation, a sequel to Vitoria’s relectionscan be mentioned.

De Indis was read in January 1539, and De iure belli in June that same year but, despite Vitoria’s indirect way of expressing himself, in November 1539 Charles V wrote a letter to the prior of St. Stephen’s Convent in Salamanca, where Vitoria lived. In it the king of Spain and emperor of the Holy Roman Empire wrote that he had been informed that “certain religious masters of [your] house have lectured upon and treated in their sermons and law courses Our holdings in the Indies.” He asserts that this is “harmful and scandalous”, and demands that all “writings that they have in their possession concerning this” must be sent to him. Finally, he also commands that in the future “without Our express permission they neither treat nor preach nor dispute upon the abovementioned, or cause any document touching upon it to be printed.”[24] This letter makes the mentioned conflict between religion and colonization explicit, and shows – in spite of state confessionalization – a clear contradiction between the logic of the state and the logic of missionaries and theologians.

Conclusions

In the above a clear separation or, rather, a confrontation has been shown between the colonization enterprise, carried out by the absolute monarchy, and the missionary impulse. It must be acknowledged that the Spanish crown for the most part regarded the missionary activities as an essential part of the colonization process (Reinhard, 2016, pp. 376-80). Nonetheless, had it not been for the missionaries’ understanding of the Amerindians as their neighbours in the Christian sense, the conquest of America would have been unquestioned.

From this perspective, las Casas and Vitoria appear as precursors of human rights advocacy, since it is clear that the first combat that had to be fought in this respect was against the absolute monarchies. In turn, once constitutional rule was established then it would be the state that would safeguard human rights principles – precisely that state apparatus that had been constructed by the absolute, confessional monarchs. Bartolomé de las Casas and Francisco de Vitoria may represent an initial moment as regards the development that would lead to the establishment of human rights as a legal principle. The confessional state colonized its subjects’ interiority in a parallel way as it colonized other peoples, but – as has been shown in the above – at the same time religion appeared as a critical voice able to liberate the souls of the individuals from state interests.

Subsequently, the idea of human dignity would become “the conceptual hinge which connects the morality of equal respect for everyone with positive law and democratic lawmaking in such a way that their interplay could give rise to a political order founded upon human rights, given suitable historical conditions.” (Habermas, 2012, p. 81). This moment had not arrived yet, but if las Casas and Vitoria are taken as examples of the subversive potential of religion, then a clear logic emerges as to why a later political thinker such as Thomas Hobbes considered that religion must be put under the competence of secular power. Hobbes’s intention was to prevent religion from playing a role in the political sphere (which is the ideal for most present-day Western states). The theologian has a moral and hermeneutical authority that may contradict secular powers – and at times even state interests both at national and at international levels. The intention behind the integration of religion within the state was to create a collective identity, to assure the loyalty of the subjects, and at the same time to subordinate religion to the state. Subsequent history has shown that the “best” solution is to marginalize religion altogether.[25]

The idea of the natural community of all humans is clearly related to the Judeo-Christian tradition since one of the latter’s basic tenets is that the entire human race has God as its origin. This idea of kinship is in marked contrast to the Hobbesian tradition which envisages the human being as a solitary individual, always in latent or open conflict with others. It is very symptomatic in this respect that Vitoria, in De Indis, asserts that “it is against natural law for one man to turn against another without due cause; man is not a ‘wolf to his fellow man’, […] but a fellow.” (Vitoria, 1991, p. 280). This last citation prefigures and rejects the Hobbesian idea of permanent war or conflict as the state of nature. The difference between the two thinkers is that Vitoria is guided by a paradigm that regards humanity as naturally engaged with itself as a collectivity, whereas Hobbes belongs to a more nihilistic and individualistic horizon that focuses on the individual’s fight for survival as the primary human condition.

Today, at the other end of the historical process that enthroned it, the territorial state is challenged in a number of ways. Present day multi-ethnic and multi-cultural societies find a considerable difficulty in integrating the many different groups that inhabit the present-day civitas. In a parallel way, today relations between states follow purely contractual rules, with no reference to any foundation of shared values or notions.[26] Human rights are often seen as the secular basis upon which a universal, international order can be founded. At the same time, it is possible that, in the process of searching for a global Gemeinschaft(in a Tönniesian sense), a set of shared values might be reached if, rather than avoiding religion, the religious traditions were acknowledged as a common basis.[27] Religion might convey a relationship based on a sense of kinship and justice that in turn would compel the states to cooperate with a greater degree of commitment than the Western tradition of the social contract – and in this way a universal acknowledgement of human rights might be catalysed.

References

Barcia Trelles, Camilo (1928): Francisco de Vitoria, fundador del derecho internacional moderno.Universidad de Valladolid, Valladolid.

Beuchot, Mauricio (1976): El primer planteamiento teológico-jurídico sobre la conquista de América: John Mair o Major. La ciencia tomista, 103, pp. 213-230.

Beuchot, Mauricio (1994): Los fundamentos de los derechos humanos en Bartolomé de las Casas.Anthropos, Barcelona.

Casas, Bartolomé de las (1971): History of the Indies. Collard, A. (trans., ed.). Harper&Row, New York.

––– (1974): In Defence of the Indians. Poole, S. (trans., ed.). DeKalb, Northern Illinois University Press.

Cavanaugh, William (1995): ‘A Fire Strong Enough to Consume the House:’ The Wars of Religion and the Rise of the State. Modern Theology 11, 4, pp. 397-420.

Dussel, Enrique (2007): Política de la liberación, historia mundial y crítica. Trotta, Madrid.

Getino, Mtro. Fr. L. G. A (1933):Relecciones internacionalistas del Padre Maestro Francisco de Vitoria, vol. 1. Publicaciones de la Asociación Francisco de Vitoria. Imprenta La Rafa, Madrid.

Glendon, Mary Ann (2001): The Sources of ‘Rights Talk’. Some are Catholic. Commonweal, 12, pp. 11-13.

Gutiérrez, Gustavo (1993): Las Casas. In Search of the Poor of Jesus Christ. Orbis Books, New York.

Habermas, Jürgen (1987): The Philosophical Discourse of Modernity, Twelve Lectures. Lawrence, F. (trans.). Polity Press, Cambridge.

––– (2006): Pre-political Foundations of the Democratic Constitutional State?, in: Ratzinger, J.C. (Pope Benedict XVI) and Habermas, J. : Dialectics of Secularization. On Reason and Religion. Shuller, F.(ed.) and McNeil, B. (trans.). Ignatius Press, San Francisco, pp. 19-52.

––– (2012): The Concept of Human Dignity and the Realistic Utopia of Human Rights, in: The Crisis of the European Union. A Response. Polity Press, Cambridge.

Jacobsen, Mogens Chrom (2011): Three Conceptions of Human Rights. NSU Press, Malmö.

Morris, Christopher W. (1998): An Essay on the Modern State. Cambridge University Press, Cambridge.

Parish, Helen R. (1992): Las Casas en México: Historia y obras desconocidas. FCE, Mexico City.

Reinhard, Wolfgang (2016): Die Unterwerfung der Welt. Globalgeschichte der europäischen Expansion 1415-2015. C.H. Beck, München.

Schilling, Heinz (2008): Early Modern European Civilization and its Political and Cultural Dynamism, University Press of New England, Hanover.

Scott, James B. (1934): The Spanish Origin of International Law. Francisco de Vitoria and his Law of Nations. Clarendon, Oxford.

Simpson, L. B. (trans.) (1960): The Laws of Burgos of 1512-1513. John Howell, San Francisco.

Symcox, G. (ed.) (2001): Italian Reports on America, 1493-1522. Letters, Dispatches, and Papal Bulls. Repertorium Colombianum, 10. Brepols, Turnhout.

Thomas, Scott (1999): The Global Resurgence of Religion, International Law and International Society, in:  Janis M. W. and Evans, C. (eds.): Religion and International Law. Martinus Nijhoff, The Hague, pp. 321-38.

Vitoria, Francisco de (1967): Relectio de Indis o Libertad de los Indios, in: Pereña, L. and Pérez Prendes, J. M. (eds.):Corpus Hispanorum de Pace, vol. V. Consejo Superior de Investigaciones Científicas, Madrid, pp. 2-133.

––– (1991): Political Writings. Pagden, A. and Lawrance, J. (trans., eds.). Cambridge University Press, Cambridge.

––– (1997): Vorlesungen II (Relectiones). Völkerrecht, Politik, Kirche.Horst, U.; Justenhoven, H.G. and Stüben, J. (eds.). Theologie und Frieden Bd. 8, Stuttgart/Berlin/Köln.

Weber, Max (2009): Politics as a Vocation, in: Gerth, H. H. and Wright Mills, C. (trans., eds.) : From Max Weber: Essays in Sociology. Routledge, London, pp. 77-128.

 

Endnotes

[1]          This idea of social justice also is at the base of the present social doctrine of the Catholic Church, and it builds on the idea that justice, rather than wealth or economic growth, is the key factor for the common good.

[2]          Beuchot draws this Thomistic line from St. Thomas Aquinas’ definition of justice to Vitoria’s reflections on social organisation in his “De potestate civili”. Belonging to this same tradition, las Casas takes the most specific consequence of this thinking in his writings when he denounced the subjection of the Amerindian peoples.

[3]         In Spanish a long series of scholarly contributions exist that relate las Casas and Vitoria to the human rights question, but – to my knowledge – the notion of the confessional state has not been included in this discussion until now.

[4]               “[C]loselyconnected with the emergence of the confessional culture and its impact on early modern state formation was its influence on the rise of political identities and nation building. In almost all the countries of Europe, and among almost all the peoples, the formation of a confessional and cultural-political identity was closely connected in time and content. This connection shaped profoundly, and still shapes, the cultural and political profile of the individual nations of Europe.” (Schilling, 2008, pp. 20-21).

[5]           The creation of state-churches in the Protestant countries was mirrored in the Catholic nations by the transference of ecclesiastical powers to the monarchy. In Spain the patronato realentailed that the king in many respects became the highest ecclesiastical authority in the territories under his rule.

[6]               At that moment the future Spain was a personal union of the kingdoms of Castile and Aragon.

[7]         The sermon is reproduced by las Casas (1971, pp. 183-84).

[8]         Cited in Gutiérrez (1993, p. 34).

[9]          The Laws of Burgos of 1512-1513. Trans., with an introduction and notes, by Lesley Byrd Simpson, San Francisco: John Howell, 1960.

[10]           Cf. Italian Reports on America, 1493-1522. Letters, Dispatches, and Papal Bulls, Repertorium Colombianum vol. 10, ed. Geoffrey Symcox, Turnhout: Brepols 2001.

[11]          las Casas reproduces the Requerimiento in his History of the Indies (las Casas, 1971, pp. 192-93)

[12]        Las Casas’s first work, De unico vocationis modo, has precisely as its main argument that conversions must be attained by peaceful persuasion and not by violent means.

[13]         This document is commented on by Gutiérrez (1993, pp. 317-19).

[14]         Although not in the same way, the notion of natural servitude, borrowed from Aristotle and applied to the natives, was used by the Scottish theologian John Major as early as 1508 (he was the first scholar in theology to address the question of the Indies), cf. Beuchot 1976. Similarly, Palacios Rubios used it as an argument during the Junta de Burgos.

[15]         Dussel follows in the wake of Edmundo O’Gorman’s seminal work La invención de América (1958) [The Invention of America] in the sense of regarding the European conquest of the Americas as a central element of modernity.

[16]        A repartimiento differs slightly from an encomiendabut the conditions for the natives are the same.

[17]        Gutiérrez also notes las Casas’s ability to put himself in the position of the natives. This becomes clear when las Casas questions whether the thinkers who legitimize the oppression of the Amerindians would approve the inverse situation: “I in no way think that John Major himself would tolerate a situation so impious and brutal if he were an Indian.” (Cited in Gutiérrez, 1993, p. 87).

[18]      This title alludes to the native’s paganism and human sacrifices.

[19]         This argument is clearly directed against the Requerimiento.

[20]         1 Cor. 5: 12, cited in Vitoria(1991, p. 260).

[21]         Matt. 16: 26; Mark 8: 36; Luke 9: 25, cited in Vitoria (1991, p. 277).

[22]        This right to travel and trade would become an important theme for later theorists of international law.

[23]       Translation modified. Pagden’s and Lawrence’s exemplary edition and translation reads “as we may for the moment assume”, but neither the critical edition of De Indis in the Corpus Hispanorum de Pace, nor Getino’s facsimile of the first two printed editions of this relection, nor the German bilingual edition (1997) allow for anything else than “as we assume” since they all read “ut supponimus”.

[24]       The letter appears in Vitoria (1967, pp. 152-53). The cited extracts appear in translation in Gutiérrez (1993, p. 348).

[25]        William Cavanaugh (1995, pp. 397-420) has argued that the modern territorial state in fact was interested in eliminating the link to the religious institutions since they precisely represented a potential source of contradiction.

[26]       It is understandable that some cultures see in the current way of organizing international society a repetition of the colonial justification from Sepúlveda onwards, namely, that the superior cultures have the right and even the obligation to impose their civilization upon less “developed” groups. Once again the West appears as the part that sets the rules of the game.

[27]       This is proposed by Scott Thomas (1999). The present contribution shows an example of how the religious tradition is not in contradiction with human rights (in fact it lies at their origin). Furthermore, recent history of human rights confirms this because the influence of the Latin American countries and, through them, the doctrine of the Catholic Church, in promoting the Universal Declaration of Human Rights of 1948 is another example of how institutionalized religion can play an active role in advancing human rights (cf. Glendon 2001; Jacobsen 2011, pp. 338-39).

The Human Right to Freedom of Religion in the Polish Education System

Legal Guarantees for Freedom of Religion

 

The legal provisions in force in Poland set up standards for respecting freedom of and from religion. These provisions apply to all persons who find themselves within their territorial reach, regardless of whether they are citizens of Poland or other states or stateless persons residing in Poland. The standard of religious freedom is also not affected by the gender, ethnicity, race and age of a person. So it can be stated that the Polish national law and the international legal system serve as the basis for protecting the human right to freedom of religion and for exercising this freedom in educational settings.

The provisions of international law, to which Poland is a party, establish legal guarantees as to religious freedom, especially the freedom of worship and religious practices. Regarding the relation between education and people’s opinions about religion or in particular the lack of such; quite apart from the provisions applicable to all people regardless of their age, the regulations of the Convention on the Rights of the Child, and articles 14 and 24 of the European Charter of Fundamental Rights are of special importance.

 

 

 

 

 

Fig. 1 The international legal system safeguarding the freedom of religion and from religion in Poland

 

The system of national law in Poland guarantees the freedom of religion and the freedom from religion, yet the analysis of the legal system leads to the conclusion that Catholicism is the religion of the majority, which brings about particular consequences and risks for the human rights sphere.

The Polish Constitution fully respects the international standards of human rights protection as regards the freedom of belief and religion. This includes prohibiting the public authorities from commanding a person to disclose their philosophy of life, religious convictions or beliefs. The right to freedom of and from religion is guaranteed by Article 53, para. 1 of the Constitution, which states that “freedom of conscience and religion shall be ensured to everyone”. As stated in para. 2 of the same article, “freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing of rites or teaching”. What is more, according to para. 6, “no one shall be compelled to participate or not participate in religious practices” and “no one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or belief” (para. 7).

Moreover, Article 25 of the Constitution places on the public authorities the obligation to remain impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life.

 

Legal Regulation of Matters of Belief in the Spheres of Education and Upbringing

The Polish constitution guarantees the right of the parents to ensure their children a moral and religious upbringing and teaching in accordance with their convictions, while taking into account the freedom of conscience and belief of their children. As stated in art. 48, para. 1 of the Constitution,”Parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of the child as well as his freedom of conscience and belief and also his convictions”. In addition, according to Art. 53, para. 3, “Parents shall have the right to ensure their children a moral and religious upbringing and teaching in accordance with their convictions”. Parents thus have a subjective right towards the state with regard to their views on religious or lay upbringing of their children, although this right is limited and counterbalanced by the child’s right to have their religious convictions and beliefs respected.

There is, however, one provision in the Polish Constitution, which allows religion to be taught at school. According to Art. 53, para. 4, “the religion of a church or other legally recognized religious organization may be taught in schools, but other people’s freedom of religion and conscience shall not be infringed thereby”. The Catholic religion is not mentioned explicitly, but the Constitution states that the provision applies to a religion that is legally recognized. At present, there are 178 registered operational religious communities in Poland.

As follows from the case law of the courts, the right of the parents to raise children in the spirit of a particular worldview does not mean that the knowledge transmitted at school will be consistent with this worldview. Such an opinion was expressed by both the Polish Constitutional Court (Judgement of the Constitutional Court of 27 May 2003, on the provisions of section 97 paragraphs 3 and 4 of Act No. 127/2005Wyrok Trybunału Konstytucyjnego z dnia 27 maja 2003 r., ref. K 11/03, OTK-A 2003, No. 5, pos. 43) and the European Court of Human Rights (Judgement by the ECHR of 7 December 1976 in the case of Kjeldsen, Busk, Madsen and Pedersen v. Danemark application No. 5095/71, Judgement by the ECHR of 13 September 2011 in the case of Dojan and Others v. Germany, application No. 319/08). The case becomes more problematic; however, when children only learn about one religious worldview at school, something which comes close to indoctrination, or when it actually takes the form of intentional indoctrination where religious knowledge is passed on while participating in the religious practices of one particular tradition and faith.

The provisions that have significant bearing on the issue of human rights in education as regards the problem of religion at schools are mainly affected by the Concordat – an agreement signed in 1993 between the Republic of Poland and the Vatican. Poland has pledged that public schools and kindergartens will organize classes in Catholic religion and grant the Church the right to decide on its teaching programs, textbooks, and the persons teaching religion – including secular catechists, priests, monks and nuns, who have been granted permission to teach by the diocesan bishop.

The anti-discrimination provisions and the provisions securing the rights of the followers of other religions within the educational system and beyond are also in effect. Discrimination on religious grounds in Poland is forbidden according to the provisions of the Constitution and international law. However, victims of discrimination are not able to benefit from the legal measures provided by the Act implementing EU regulations, pertaining to equal treatment and the pursuit of compensation on its basis. This Act only prevents unequal treatment in education on account of race, ethnic origin or nationality (Art. 7).

It can be concluded that the Polish law introduces the standards of religious freedom, but it should be considered whether this standard is not a façade which hides the lack of equality. Because justice is not a dictate of the majority, the effectiveness of anti-discrimination instruments and the actual existence of response mechanisms for possible instances of minority discrimination need to be scrutinized and evaluated.

 

Dilemmas Pertaining to Teaching Religion in Public Educational Institutions

The main issue to consider when analysing the relation between education, religious matters and ethical principles is whether religion and ethics should be taught at schools and if so, how. Related questions are, first of all, whether teaching religion should also include participating in religious practices. The second question is whether the State should be neutral in terms of worldview and whether ethical issues should be taught through the lens of the legal protection of human rights. And the third question is whether religious matters should be discussed from the anthropological standpoint so that children could learn about the various belief systems that exist in the world.

It seems that these issues have long been resolved in the “old” European Union countries. Nevertheless, Poland is a peculiar state in which, after almost 30 years of teaching religion in public schools, we begin to ask these difficult questions anew. Poland is relatively uniform in terms of cultural and religious convictions and practices. There is a strong and increasingly stronger dominance of Catholic discourse in the Polish culture and public life. But the matter here is not so much about the numbers than it is about one of the most important issues in democracy. It is about honouring the rights of the minority to be respected in their beliefs and values and modes of social functioning. An analysis of the influence that religion and ethics have had on the society is difficult because everybody has a different value system. Values are part of human identity. The objective assessment of these problems is difficult in the actual circumstances. From the point of view of protecting human rights, it seems fit to evaluate the case of teaching religion in the context of law, which reflects certain universal values, developed and cultivated by the previous generations who had to find solutions to these problems before.

 

How Religion, Especially Catholic, entered into the Polish Education Institutions

The current regulations allow for teaching any religion that is registered in Poland, but originally the only religion taught in schools and later also in pre-schools was Catholicism, which found its way there due to pressure from the hierarchy of the Catholic Church. In order to fully understand the impact of the compulsory lessons in religion have had on the issue of human rights protection, the cultural and political circumstances behind the introduction of religion into the educational system need to be explained first.

Before religion became a school subject, children of the Roman Catholic faith could attend such classes at their parishes. These lessons were held in the so-called small classrooms, which looked like traditional classrooms, but were located either in the presbyteries or one of the parish buildings. Children from different religions either took non-institutional lessons or no lessons at all. Ethics was partially covered in the civic education course. But according to my experience, ethical dilemmas were discussed broadly in literature lessons while studying the Polish literary canon.

Religion was introduced into the Polish school system in September 1990, by virtue of a directive issued by the Minister of National Education on the 3rd of August 1990. At the time the act was illegal – as it would be illegal today. This was done at the express request of the bishops, who passed an official resolution regarding the matter at the Polish Bishops’ Conference and they threatened the Government to take legal action and organize social protests.

We should remember that Poland was in a very difficult situation at the time. The legislative power was held by a special constitution of the Sejm called the “contract Sejm”. It was made up in half from the Communists peacefully giving up power and in half of the Deputies chosen in a free election. The hyperinflation was raging. The Soviet Army was still stationed in Poland. The government wanted to defuse the social situation and was afraid of riots on religious grounds – even more so than in the Socialist period, the Church was heavily involved in the resistance against the Soviet Union and the Communist regime. It was at this moment the stereotype of the Polish-Catholic patriot was solidified. The Government took the opportunistic stand. They wanted to prevent further destabilization of the State and ensure a win in the upcoming parliamentary elections, so the blackmail happened to be effective.

One of the Government officials at the time, Jacek Kuroń, admitted: “I thought that we had avoided a religious war. But I was wrong. At once, critical voices were raised about trying to make Poland a religious state, which was all the more valid since we had broken the law – we, who talked so loudly about making the new Poland a state of the law!” (Kuroń and Żakowski 1997: p 182). It is often claimed that religion was sneaked into schools through the back door (e.g. Agnosiewicz 2002, Słowik and Beczek 2015). Introducing religious education classes were not approved by everybody and from the beginning it stirred many doubts related to civil liberties and human rights. This chart presents the formal stages of introducing religion into Polish schools (fig. 2 Chronology of educational curricula):

 

The decisions of the Government met with formal objections from the Ombudsman. Ewa Łętowska objected to the violation of the law, including the Constitution, provisions concerning the freedom of worship and laws regarding education. This was to little avail, as the Constitutional Court did not react accordingly. It stated, for example, that “the secular and neutral nature of the State” may not be a justification for teaching religion in public schools, but it also cannot be a justification for not allowing it to be taught.  Legislative measures to introduce religion into schools were undertaken in 1992. Again, the Ombudsman raised an objection, which again was dismissed by the Court. In the end, grades for religious education began to appear on the school-leaving reports.

While the actions that led to the introduction of religion into schools in 1990 could be described as a blitzkrieg because they came as a sort of shock to the society, soon afterwards a heated debate began, which continues pretty much until today. Below are some exemplary quotes from the statements made by the Church officials and their supporters. These statements maintain the belief that religion is an expression of freedom from Communism and that Catholicism is linked to patriotism. As such, they stigmatize attitudes that do not adhere to the Catholic worldview. Jacek Kuroń cites the opinion of the bishops who commented on introducing religion into the Polish schools’ curricula. (Żakowski and Kuroń 1997: p.180 – 181.) In their opinion, ”Believers have the right to learn and develop their faith and since it is not possible to separate education from upbringing, schools are the right place for religious formation”. Moreover,”Return of religion to schools means the reparation of the harm the Polish society suffered under totalitarian rule that sought to banish God from people’s lives and to deprive Poles of their national identity”. The bishops also claimed that their fidelity to Christ’s teachings obliges them to preach and remind the entire world that schools are a natural place for evangelization. The matter was also commented upon by priests; the following is a representative example: “Freemasonry and other unbelievers, under the guise of freedom and neutrality, have suspended any relations with the living God” (Bartnik 1993, see: http://www.racjonalista.pl/kk.php/s,434).

Different argumentswere expressed by secular circles and those concerned about the “totalitarian” character of teaching just this one religion in schools. Some of these statements were made, for example, by the members of the Polish government at the time. They draw attention to the conflict-inducing nature of such actions and the threat that they pose to the freedom of persons who do not want to participate in religious education or who will only participate in them for fear of explicit or implicit discrimination and pressure.

Even then, technical problems as to the organization of these classes are signalled, which, as it turns out, has led to actual discrimination. Jacek Kuroń pointed to the negative implications of the fact that the state will teach religion under statutory coercion and he tried to salvage the situation of non-Catholics, stating that voluntary consent has to be a positive, not negative, decision for parents and pupils. He tried to substantiate his opinion with a claim that “introducing religion into schools threatens to create tensions and conflicts in many environments, not only between adults but also children”[1]. On the other hand, the then deputy minister, Anna Radziwiłł argued that universal Christian ethics should be part of education, but religion should not be taught as a school subject, because it is something greater. The representatives of the scientific and artistic circles and journalists then sent an open letter of protest to the Polish President, Prime Minister and The Minister of National Education, against the plans to introduce compulsory religious education in schools, in which they argued that “the initiative of the Ministry is aimed at turning state schools into denominational school which is the expression of undemocratic tendencies. They claimed, and rightly, as it turned out later, that ‘the choice: religion or ethics will be a false choice, given the Polish realities’.”[2]

Since 2007, grade in religion classes is placed on the school certificate and the Church has endeavoured to make religion one of the matura subjects(see: Wiśniewska 2016, see: http://wyborcza.pl/1,75398,20126283,religia-na-maturze-mozliwa-w-2021-r-kosciol-dogadal-sie-z.html?disableRedirects=true). Maturais a Polish state exam taken at the end of secondary school giving access to the University. Long-term observation of the political scene allows to conclude that the right-wing groups promised to acknowledge religion as one the matura subjects in exchange for the Church’s support for their candidates in the election.

 

The Importance of Catholic Religion in Poland

To understand the Polish case, one should be aware of how important the Catholic religion is in Poland as compared to other religions or atheism and what is the status of the ecclesiastical institutions in our country. Catholicism is very popular and, in a sense endemic here, as a worldview. Which is another reason why religious education (RE) has been taught at schools for about 30 years already.

The Catholic Church has an extremely well-developed and organized administrative structure, covering the entire Polish territory with a broad network of territorial units: parishes, dioceses, archdioceses and metropolies.

 

 

 

 

 

 

 

 

 

 

 

 

 

Fig. 3 The administrative structure of the Catholic Church in Poland and basic statistics. The Central Statistical Office of Poland Information note prepared in partnership with the Institute for Catholic Church Statistics SAC, Warsaw, 2017 (https://stat.gov.pl/files/gfx/portalinformacyjny/pl/defaultaktualnosci/5500/7/1/1/struktura_administracyjna_kosciola_katolickiego_w_polsce.pdf)

 

Clearly, as far as human capital and organizational support are concerned, the organization of RE classes in public schools and kindergartens does not pose any problems to the Catholic Church, but given the situation, these classes could equally well be held at the parishes.

It is indeed difficult to assess how many Catholics there actually are in Poland, how many atheists and how many people of other beliefs. Official government statistics are based on data provided by religious associations, but other statistics are also considered. The authors of the report (cited below) observed a 3,2 million discrepancy in the number of Catholic Church followers, depending on the counting method. It should be noted that the Polish population is about 38 million.

According to the report, the statistics as of 2017 are as follows:

  • 10 248 parishes,
  • 30 925 priests.
  • 33 214 800 believers – according to the Church.
  • On average, there are 3241 followers in each parish and 1047 followers for one priest

The notion of a follower does not reflect fully the complex human relation to faith and religious duties. For this reason, the Church and public statistics do not indicate the actual number of practising followers, but rather the number of baptized persons. Thus, secular circles often allege that the official statistics, due to the opportunism of the Church officials, are highly inaccurate because they are based on the numbers provided by different religious denominations and their presentation is also not fully reliable.

In the general census, conducted in 2011,[3] 95% of respondents declared Catholic faith.  As for other beliefs, 0,44 % of respondents declared the formal membership in the Russian Orthodox Church, 0,39% in the Jehovah’s Witness Association, 0,20% in the Evangelical-Augsburg Church, 0,9% in the Greek Catholic Church, 0,8% in the Pentecostal Church,  0,03% in the Mariavite Old Catholic Church, 0,02 in the Polish-Catholic Church and 0,2% in the Baptist Church. 0,12% respondents declared belonging to other religions and 2,41% declared themselves to be non-believers. These numbers have been obtained through a census that took into account only 20% of the households in Poland. What is more, 7% of the respondents refused to answer the question and for 1,6% it was impossible to obtain data. It is thus uncertain whether these statistics reflect actual social tendencies. What is also important here is that people who have been raised in some religion or just in certain social conditions, in which the existence of a higher power is implied, may not be able to declare atheism, even if they do not practice any religion at all. “They believe just in case, because you never know how it really is, and you wouldn’t want to mess with God.”

As a result, data showing that there is so great a domination of the Catholic worldview in Poland is not fully reliable. Still, the fact that it is presented in such a manner may lead to the occurrence of a phenomenon known as the Noelle-Neuman’s spiral of silence. According to this theory, people refrain from presenting their views when they believe that these views are not in agreement with the view of the majority (Noelle-Neuman 1974: p. 43-51).

Nevertheless, Catholic religion in Poland is dominant and this is visible in all spheres of social life. Many people go to church every Sunday. Baptisms, weddings, communions and funerals according to the Catholic rite are also common. This can be seen as an element of folklore, but also as the result of the strong, position of the church in Poland, which has been built over the last decades. Catholic priests are present during many state ceremonies and they bless newly constructed public buildings. Characteristic of the Polish landscape is spontaneously erected and maintained chapels. Not only in the villages, which were commonly conceived as the bastions of the traditional approach to life and religiousness, but also in the cities (cf. below: Pic.1 On the left is a rustic chapel in Bukowina, near Kudowa, on the right, a chapel in the Grochów District in Warsaw – the capital. Photo: M. Tabernacka).

 

 

 

 

 

 

 

It should also be noted that the Catholic Church receives considerable support from the public authorities. This support may be financial, organizational or institutional. An interesting example of this tendency is the Polish Post, the offices of which look like a combination of a devotional shop and a little rustic store that sells socks next to rosaries. Both pictures were taken in a Wrocław post office. Books that can be seen here are quite consistent in their subject matter. Some of them describe events from the history of Poland and the Polish people, but from a rather nationalist standpoint. There are also books written by priests and culinary books written by nuns and religious literature for children. Although “The Danish Way of Parenting” can also be spotted (cf. Pic.2. Photo: M. Tabernacka).

A certain counterbalance to these tendencies is provided by people with a secular outlook and non-Catholic religious beliefs and the actions they undertake in the public sphere. One example of such actions is the “School is not Church” social campaign run by the foundation called “Freedom from Religion”,[4] whose poster (with the same inscription) is shown on the photo below (Pic. 3. Photo: M. Tabernacka 2017).

 

The campaign’s authors insist on the secularization of the school and they are opposed to the domination of the Catholic religion, pointing out that the ever-presence of its symbols in schools is a symbolic violence that affects students from religious and non-believer minorities during the long years of education. The same foundation also promotes the freedom of worldview and the separation between the church and the state, which is guaranteed by the art. 25 of the Polish Constitution.

Both the Polish Constitution and a separate legislation ensure the separation of church and state. However, a number of legal regulations guarantees a privileged position to the Catholic Church and teaching religion in schools is just one of its consequences. About 30 years of publicly teaching RE in Poland may be one of the key factors determining the current escalation of xenophobic attitudes among young people who hide behind a specific perspective of patriotism that is closer to nationalism and religious ethnocentrism.

 

What Is the Teaching Practice of Religion in Polish Schools

According to Polish provisions, children can attend RE classes in all types of primary and secondary public schools. These can be in Catholic religion or any of the minority religion classes. Those who are not willing to be educated in religion can attend ethics classes if these are organized at their schools. If these are not organized, they can attend neither of the classes, at least according to the general principles derived from the law. But it is the practice of teaching religion in Polish schools that raises doubts about the preservation of human rights.

Legal regulations in Poland guarantee the freedom of religion and non-discrimination on the ground of religion. The problem lies, however, in the manner they are executed and in the specific social climate, which makes public authorities and certain individuals more inclined to opportunism towards the aspirations of the clergy and the Catholic community.

Attending or not attending RE has important implications for the Polish learners, because it affects the assessment of their overall school performance. The following diagram illustrates the specifics of organizing RE and / or Ethics in Polish schools in relation to the grades that learners can obtain (fig. 4 Organization of RE / Classes):

 

 

 

 

 

 

 

The organization of RE / ethics classes are regulated by the Regulation of the Minister of National Education of 14 April 1992 (Journal of Laws No. 36, item 155, as amended, the latest amendment of 1 December) regarding conditions and methods for teaching religion in public schools and kindergartens. According to this regulation, learners attending RE / ethics can get two grades, one grade or no grade at all. These grades count in the grade average, which makes them important for the assessment of the learners’ overall performance. If either ethics or religion are chosen, presence is mandatory just as for any other classes, so it may affect the grade for conduct.

If there are 7 pupils in a school class or a kindergarten group who want to attend religion, the school or kindergarten is responsible for organizing such classes. If there are fewer than 7 pupils in a class or group, combined classes should be organized. If there are fewer than 7 pupils interested in attending RE classes in a school or kindergarten, the municipality is responsible for organizing classes for interschool or inter-kindergarten groups or at a religious education facility. The municipality is obliged to organize them even if there is just 1 such learner. The case is similar with ethics. In practice, the number of children attending ethics classes is small, even if it has increased in the last few years. The statistical data is presented below (fig. 5: Fig. 5, 2015 Annual Report of the Ombudsman. Source: M. Tabernacka):

 

Access to ethics classes in Poland was only taken seriously after the 2010 judgement of the European Court of Justice in Strasbourg in the case of Grzelak vs. Poland (Judgement of the ECHRights of 15 June 2010 in the case of Grzelak v. Poland, application No. 7710/02). The school authorities’ failure to organize ethics classes for a child who refused to attend RE classes was taken by the Court as an infringement of the articles 9 and 14 of the Convention. Nonetheless, even if ethics classes were formally guaranteed in schools, there were often doubtful cases from the standpoint of freedom of religion and conscience. There were some cases in Poland, where ethics classes were conducted by the same people who taught religion and on the basis of textbooks written by some Catholic priest or parents who opted for an ethics course were met with such proposals for these classes. Thus, when it comes to the actual safeguarding of human rights, the implementation of the provisions pertaining to teaching religion and ethics actually leads to the infringement of the standards for protecting human rights in Poland.

Teaching minority religions in Polish schools are, in fact, very rare. Under the current provisions in force public schools have the obligation to include the grade from any religion taught outside of the school system on the school-leaving certificate. The Ombudsman’s report showed that quite frequently the school authorities did not recognize such grades. The followers of minority religions who want to organize RE classes at schools often meet with a refusal by these authorities, their passivity or institutional obstacles, such as inconvenient hours (The 2015 RPO Report). The following chart illustrates the Polish educational practices for teaching minority religions (fig. 6):

 

The presence of the Catholic religion in schools goes far beyond the scope of an ordinary school subject in what regards the substance and organization.According to the law, two classes in Catholic religion should be held each week, or if it is only one, then the local bishop should give his permission. During the lessons, the pupils learn about the principles of the Catholic faith, but they also participate in religious practices, for example the classes tend to start with prayers. In fact, lessons are the combination of religious practices and theory from the textbook and workbook. This may pose a problem if schools cannot provide care or an alternative place to stay during the lessons to children who do not want to participate in RE and have to sit in class with other children. The organization of the Catholic holidays and retreats also calls for additional study breaks. The research conducted among children attending these lessons reveals that some of their contents verge on indoctrination. Children are shown propaganda videos (about miracles, conversions, etc.).

It is important to note that in Polish schools it is assumed that everyone will attend religion, but the regulations in force since 2014 (Journal of Laws of 1992 No. 36 item 155) explicitly state that religion is organized on the parents’ request or the learners’ themselves, after they have come of age, which stems from para. 1 of this regulation. The said request should be made in writing. The above chart presents the results of a study carried out by the Ombudsman in 2015.In many schools surveyed by the Ombudsman and schools which I researched, RE was simply a part of the agenda for all learners to attend by default. There was no practice of launching it on request and parents were not informed that such a request was a condition for the attendance of their children to such classes. Religion is simply placed on the class schedule, most often at a time convenient for the priest or catechist. The report that concluded the Ombudsman’s survey stated that in 70.4% of the schools surveyed, new students were automatically directed to take RE classes.If the learner didn’t want to participate, they could (or their parents could) report this orally (41.4%) or in writing (29%), 42% of principals explicitly stated that the schools they run do not inform learners and parents about the right to choose minority religion or ethics classes.

Both having a minority religion and ethics classes organized often require a great deal of determination from the learners and their parents, as these lessons often take place outside of school, in the so-called Inter-school classes and in inconvenient hours.

The law guarantees religious denominations and parents who adhere to specific beliefs the possibility to set up their own schools and such schools indeed exist. Parents representing these specific views can send their children to such schools without any obstacles, as it is also guaranteed by the law that a religious denomination can teach religion within their own structures.

The teaching of religion in Polish public schools points to numerous areas in which the right to non-discrimination and the freedom of worldview could be threatened. Economic determinants of state functioning considered in the light of the social justice principle, e.g. fair avocation of funds collected through taxes or total costs of the Polish education system are also relevant here. The law should not only safeguard certain rights but also provide mechanisms to counteract inequalities. Only such a legal standard can guarantee the protection of human rights in a given sphere. The Ombudsmanclaims that the current Polish regulations do not protect the various religious and social groups sufficiently. The persons belonging to the Roman Catholic Church have a privileged position: not so much due to legal regulations, but due to tradition, cultural practices and pragmatic considerations. The Ombudsman’s report points to the existence of hidden or passive denial of the rights of persons and groups representing religious or worldview minorities. The Ombudsman believes that legislative actions are less important than soft educational measures, appropriate mass media communication and a long-term policy for social education, which can bring about cultural changes (The 2015 RPO Report: p. 6-7).

The analysis of the legal provisions allowed me to distinguish a number of legal provisions pertaining to human rights in the field of education. They can be classified into three groups: first, freedom of religion, second, prohibition of discrimination affecting universal right to education and, third, provisions protecting the child’s mental and physical well-being. The rules in question will now be presented within the social context related to the presence of religion in the Polish public schools.

 

Freedom of Religion and Freedom of Thought

The principle of freedom of religion and belief is a fundamental human right, which obviously applies not only to adults, but also to children. It includes, among others, freedom to choose one’s religion, including the lack of it. One of the most important achievements of our civilization in the last 150 years has been the gradual refinement of the societies, which brought about the recognition of children’s subjectivity. As regards the guarantees for respecting human rights, another fundamental issue is the right of children to express and to demand respect for their views, including their religious views.

These standards are binding in secular countries with democratic systems. Any infringement of the principles regarding the freedom of worldviews and the freedom to choose one’s religion calls into question the actual secular and democratic nature of a state. Poland, according to the current Constitution, is both a secular state and a state following the model of democratic ruled by law.

It is extremely important to ensure that the prohibition against compelling anyone to participate in religious practices is complied with. This issue is related to whether RE will be taught as a school subject, whether it will aim to familiarize students with different religious systems and whether it will entail participation in religious practices. During the Religious Education lessons it may occur – and in Poland this is commonplace – that children say their prayers. Given the compulsory participation in such lessons this can be regarded as a violation of human rights.

Participation or non-participation in classes of religion in public school is an expression of a specific worldview or a particular religious or non-religious option. Even if a person who chooses one of these options does not intend to deliberately affirm anything, their choice can still become the subject of social evaluation. What is more, the consequences of making the choice and having it formally disclosed by placing the RE grade on the school certificate, are permanent, which further increases the risk of human rights infringement in the future and is already such an infringement itself. A related problem regards the assessment of the student’s participation or non-participation in RE within the context of the other classes that the school provides. According to the experts, placing a dash instead of a grade on a school certificate of a student who didn’t attend RE / ethics is regarded as illegal if ethics classes were not organized by the school. This violates the constitutional principle of not having one’s religious convictions disclosed and represents a breach of the right to privacy, guaranteed by Art. 18 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Olszewski 2010:p. 189-190).

One characteristic of teaching RE in Poland is that public education is subject to certain normative regulations that stem from a normative order that is not “public”. This also affects persons who are not willing to conform to this order. The public and legal relations of the state’s citizens should not be bound by regulations other than those provided by public law. This is one of the fundamental standards of democracy. The public law and its execution should thus not lead to the state of coercion, in which the process of performing public activities, the situation of individuals is affected by religious norms. Even if public law allows to be exempt from the operation of these norms, the actual social situation of an individual opposing the active, or even silent, will affect this individual’s right to religious freedom and freedom of convictions, which should be explored with regard to one more factor. As noted by J. S. Mill, “social intolerance, kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion”. According to the author, social stifling of “heretical” opinions allows to maintain the status quo of the intellectual climate, and to provide for comparative order, at least for some time. Yet, the price society has to pay for such an intellectual pacification is “the sacrifice of the entire moral courage of the human mind” (Mill 2012: p.128-129).

Freedom of religion and belief in the context of introducing religious education into schools should also be examined from the standpoint of the principle of proportionality operating in Poland by virtue of Art. 31 para. 3 of the Constitution. According to this regulation, any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights. None of the conditions it outlines justifies restricting the scope of the principle of freedom of religion and belief, atheism included. Perceiving “minority” worldviews as immoral or “threatening” to the public order by the mere fact of their existence would be against the universal values expressed in the Universal Declaration of Human Rights, including the right to freedom of thought and religion, guaranteed in Art. 18.

Even more so, that the preamble of this convention frames its underlying rationale as the following: “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Big words from the preamble, stating that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people”, and that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” should also apply to the legal obligation to ensure non-discrimination of religious minorities and persons professing no religion.

 

Ban on Discrimination

Discrimination related to teaching Catholic religion in Polish schools is thus a structural problem involving both specific organizational problems and organizational culture of the Polish educational establishments in general, derived from the broader social climate. This happens when the provisions create a condition in which, depending on the specifics of their implementation, discrimination will be either present or absent.

One example is the regulations of 1992 concerning the organization of RE which place the school principal in a very difficult predicament from the praxeological point of view. According to paragraph 1 of this article, lessons of religion in schools and pre-schools should be organized at the explicit request of parents or pupils, after they have reached the age of majority. But, as stated in para. 2, these lessons should be included into class schedules. Enrolment requests for school or kindergarten pupils should be made in writing. It is not technically feasible in multiple-class schools that RE will always be scheduled as the first or last lesson on a given day. These classes are often planned to take place in between other classes, which brings about serious logistical problems related to ensuring proper care to children who do not participate in them. This, in turn, causes schools to resort to measures resulting in discrimination of such children. It is also worth considering that statistical surveys conducted among both believers and non-believers conclude that the vast majority of the population (81%) thinks that RE classes should be scheduled either at the beginning or at the end of the school day so that persons who do not participate in them do not have to wait between lessons. Only one in eight persons surveyed (12%) does not endorse such a solution.[5]

An important question regarding the problem of discrimination is the question whether participation in RE is actually coerced. It emerges from my own research and the Ombudsman’s report (2015) that it is commonly “expected” in schools that all the school or kindergarten pupils will attend RE. Therefore, the catechists will commonly just enter the classroom and begin to conduct classes for all the children that are present. Also, contrary to the provisions of this Act, there are cases in which a written declaration of a child’s non-participation in RE classes is needed. At times, participation declarations ready to be signed were distributed among children at the beginning of a school year. Occasionally parents were required to hand in participation or nonparticipation declarations along with first-class admission forms. “Freedom from Religion,” foundation protested against such instances addressing the school management (e.g. the management board of the Integration Primary School No. 11 in Kielce), asking them to immediately change the first-class admission policy and remove any inquiries as to the candidates’ intention to attend or not attend RE. These inquiries were seen as having no legal footing and clearly violating Art. 53, para. 7 of the Polish Constitution as well as the provisions of educational law.[6].

The same tendency was pointed out in the RPO report (2015). On the other hand, as shown in the surveys conducted among the school principals, the practice of organizing RE classes for first graders is very routine. In 70.4% of the schools surveyed, new students were automatically directed to take Catholic religion classes. Only if the learner didn’t want to participate, could they (or their parents could) report this orally (41.4%) or in writing (29%). The active and prior, oral or written, declaration concerning the classes the student wishes to attend is taken by only one out of ten students (or their parents).  Almost half (42%) of the principals surveyed explicitly stated that the schools they run do not inform learners and parents about the right to choose minority religion or ethics classes.

The Ombudsman’s report has also uncovered other actions that bear the distinguishing features of discrimination on the grounds of religion or worldview (The 2015 ROP Report):

  • Not including the grade from minority religion classes on the school-leaving certificate. This grade is counted in the grade average, which results in unequal educational opportunities for these children.
  • No remuneration for teachers of minority religions within the education system.
  • Obstructing the organization of minority religion classes for children of the same age and insistence on creating combined groups for children. e.g. from the primary school’s year one up to six.
  • Negative reaction to the parents’, adolescents’ and children’s willingness to participate in ethics classes, including dismissal of the request, apparent acceptance, but lack of further action; making children participate in RE, e.g. by informing that participation is compulsory, when it is voluntary according to the law.

Yet the data disclosed by the foundation “Freedom from religion” suggests that religious discrimination in Polish schools takes on other forms as well. These include school employees pressuring students to take part in religious ceremonies; what is more, school celebrations contain elements of Catholic religion. Discrimination and indoctrination are also present in many educational and upbringing activities, including school decorations (e.g. the domination of religious symbols in the classrooms and corridors, a plaque in the cafeteria which equates the students’ high personal culture with praying before meals, etc.).[7]

Any discrimination of social groups or individuals is detrimental to the society’s potential as is social pressure to ensure a complete worldview uniformity. J.S. Mill draws attention to the need to ensure liberty of thought and pointed at the socially negative consequences of the “tacit convention that principles are not to be disputed”. According to the author, no nation has developed or will develop in “an atmosphere of mental slavery” (Mill 2012: p.131). The observations of R. Wilkinson and K. Picket concerning equal opportunities in society (Wilkinson and Pickett 2011: 191-211) are consistent with this line of thought and can also be linked to the social effects of discrimination arising in schools out of teaching just one (Catholic) religion there. The lack of equality brought about by favouring just one religion creates divisions and undermines trust, leading to a dysfunctional society.

The ban on discrimination on religious grounds is also related to fair participation in public finances. In the case of teaching religion in Polish schools this is also closely linked to the principle of separation of church and state expressed in Art. 25 of the Polish Constitution. Public schools are financed from public funds and run by municipalities. The salaries of the priests and catechists teaching RE are drawn from public funds, but these teachers are appointed by the church authorities. Public supervision of their teaching is limited, which will be analysed in more detail below. The catechists have a formal status equal to teachers of other subjects – in terms of wages, working conditions and pension rights.

The unequal professional standing of catechists and teachers of secular subjects is pointed out by B. Olszewski (2010: p. 186 and 193-194) as one element in the structural conflict related to teaching RE in Polish schools. The author mentions that the catechists are employed in accordance with the Teacher’s Charter – a legal regulation concerning all Polish teachers – but their legal status is also influenced by the Church regulations and the decisions made by its representatives. One example is the manner of assessing their competences to teach, e.g. the bishops deciding who can teach religion in a given school. The catechists can also become members of the Teachers’ Board and acquire early retirement rights like other teachers, but they are not fully subject to normal supervision within the general education system.

The cost of organizing the Catholic religion classes is therefore borne by all taxpayers, regardless of their beliefs. The problem of financing RE lessons in public schools has been debated since 1990s. One of the main arguments brought forward by the opponents of financing RE from public funds has been that teaching just one single worldview is financed through taxes also paid by those who do not subscribe to this worldview. The creators of the civic project under a statutory initiative “Secular school”, started in 2015, put forward the following postulates: “Religion in schools – yes, but not paid for through our taxes – let it be financed through Church funds and disappear from the class schedule. They maintain that their initiative is not anti-Catholic nor anti-religious. On the contrary, “[they] are absolutely for religion being taught in schools but after the regular classes have ended, not alongside them”.[8] Opponents of public funding often refer to the opinion expressed by T. Jefferson: that it is unacceptable “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves”. He considers this “sinful and tyrannical, and any attempt to do so threatens the religious neutrality of the state” (Agnosiewicz 2002: op.cit).

The prohibition to compel a person to disclose their convictions or belief is essential for the elimination of discrimination. However, when a particular religion is commonly taught at schools, this prohibition is actually violated, because the very fact of participating or not participating in RE classes is indicative of a certain worldview. If schools are to be neutral in terms of worldview, then religious matters could be taught in classes objectively presenting different religious and philosophical systems. What is specific about learning environments in general is that they foster frequent interactions between children who know relatively much about one another. Actively creating situations in which some of the children may feel inferior because they differ from the majority is a real discriminatory mechanism. Adolescence is a period fraught with conflicts and those who differ from others are subject to rejection and discrimination. In Poland, unfortunately, little attention has been paid to the shaping of egalitarian social attitudes, especially lately.

Any form of discrimination against learners who are the followers of minority religions or followers of no religion at all may prevent these learners from fully benefiting from their right to education. Vital aspects of this problem will be presented below, but it should be noticed that in the General Commentary to Art. 18 of the International Covenant on Civil and Political Rights, the Human Rights Committee has pointed out that public education which allows for teaching of a particular religion is not compatible with this Covenant. Unless it is possible to obtain an exemption from these classes without any discrimination or alternative classes are offered, taking into account the wishes of the parents and caretakers.

 

Universal Right to Education and the Prior Right of Parents to Decide on their Children’s Upbringing

To pass on certain religious views to children at school could impact the right to education. This right should be implemented on an equal footing for all entitled persons. Where there is an actual breach of the principle of equality by discriminatory practices in both peer groups and in the school-pupil relations, that right is infringed. There are some important problems here.

One problem is the right of children to care and that their well-being is taken into consideration. This includes the physical security such that a child will not be left unattended as well as the psychological comfort that a child will not feel excluded and, furthermore, that it will not be affected by the negative consequences of the fact that they do not attend certain classes due to a different worldview. Another issue is related to ensuring the safety of children in educational institutions. Yet another concerns the parents’ right to raise their children in accordance to their convictions. It is also important to ensure a sufficiently high level of schooling that is uniform across the entire state.

The parents’ attitude to the declaration of their children’s participation in RE classes would be influenced by a possible threat against their children’s physical security and psychological comfort. According to one such views, the pressure from the “worldview majority” is so strong that non-believers, as they themselves declare, choose to declare their children’s participation in catechesis and other religious practices for “social reasons”. Non-believers are often worried about their children’s well-being in the face of more and more frequently reported cases of social ostracism and violence[9].

This tendency already manifested itself in the early stages where RE was introduced in the Polish public schools, that is, in the 1990s. Studies reveal (NEUTRUM 1996) that parents and students preferred to avoid open and long-term conflicts with the school. In practice, such conflicts were resolved by the child’s departure from school or muffling the conflict for the sake of peace. The conflicts were thus resolved “quietly”, as the parents were afraid that the situation might affect their child. In order to avoid repercussions or out of a sense of duty to remain loyal to the representatives of the religion that they professed, they rarely resorted to institutional settlement of conflictual situations.

The fear of being subject to aggression in a situation where the education system does not guarantee the de facto equality of different belief systems is not unfounded. As noted by Wilkinson and Pickett (2011: p. 151-152 and 161), increased inequality raises the stakes in the fight for status and is responsible for the increase in aggressive behaviours. The authors draw attention to the fact that violence is a frequent reaction to being insulted or losing one’s face. In a situation where children being educated get a hint that another person is “different”, because he or she does not attend RE and does not belong to the majority that would give them a sense belonging to the “right” people, this may lead, especially if there’s no standard of respecting differences, to treatment that is humiliating to the affronted person and may cause them to retaliate.

In the words of R. Tyrała (2014: p. 320), non-belief is a discreditable stigma. According to the author, dealing with this stigma by hiding one’s non-belief may result from the balancing of profit and loss. His research shows that non-believing parents often submit to the pressure of their family environment and send their children to RE classes, even though a relatively higher percentage of non-believers decides against such a step. Yet, due to the lack of institutional mechanisms, the pressure from peers and teachers is still present in the lives of the children whose parents are non-believers (Ibidem: p.334-335).

According to Art. 3, para. 3 of the regulations on the conditions and method of teaching religion in public schools, schools are legally obliged to “guarantee care or general educational classes during the period of religion or ethics classes for students who do not attend religious classes”.It emerges from my research that the implementation of this obligation in practice may at times be improper, resulting in both uncomfortable and dangerous situations for children as well as stigmatization and discrimination.

I have documented instances in which a child was to be chaperoned into another class for the duration of these lessons, but often he just had to wait in the school corridors. He was not taken care of properly, so he had to be moved to a different school. In another instance a child whose parents declared that he will not participate in RE classes was given a choice to either wait in a school corridor or stay in the class for the duration of RE, during which, in order not to “stand out”, he stands up for the prayer like other pupils. He does not participate in the activities but should not disturb the others.This is a stigmatizing situation, affecting the individual’s universal right to education. A study conducted in Poland soon after RE classes were first introduced[10] revealed that the opinion of the students themselves is no different. According to the respondents, when all the students finished their classes and went either home or to the parish to attend RE, their school situation was more or less equal. Upon introducing RE, the “otherness” of the children who did not attend the classes had become a problem. They have been stigmatized by being labelled with epithets that equalled not attending RE with being a member of certain religious or social groups that are perceived negatively in the society[11].

The proper standard of schooling should also be ensured by appropriate control measures. Public authorities financing a given initiative should have a degree of influence or at least supervision over its most important aspects. When teaching a subject in school, religion included, these aspects include, above all, appropriate pedagogical preparation for teaching different age groups in a manner that is adequate for their physical and mental development as well as providing an appropriate content. According to para. 4 of the regulations regarding the conditions and method of teaching religion in Poland, the RE curricula and textbooks are developed and approved by the Church authorities and only forwarded to the Minister of Education. There are no constitutional or supervisory mechanisms to oversee the content of these textbooks and curricula. The obligation to employ a catechist is not equated with influence over who will actually be employed. As stated in para. 5 of the aforementioned regulations, a catechist is employed solely on the basis of a registered referral issued by the church authority – in Catholic Church this is diocesan bishops. Similarly, professional qualifications of catechists are assessed by the Church hierarchs – the Polish Bishops Conference, specifically, but here the provisions entail acting in agreement with the Minister of National Education. Taking everything into consideration, it cannot be stated that the Polish provisions introduce a universal standard of equality in religious instruction in public schools. What is most lacking are the instruments of control and supervision over the socially important aspects of such an instruction, including curricula and staff responsible for conducting the classes.

 

Conclusions

The case regarding the introduction of RE into the Polish public education system allows the observation of certain important tendencies and evaluate them from a relatively long-time perspective of 30 years of religious education. Common religious education in public schools can highly affect the functioning of a given society. Some consequences are also visible in the manner of functioning of certain religious communities, such as the Roman-Catholic parishes in Poland.

Paprzycki (2015: p. 10) notes, while analysing the problem regarding religious markets as they are related to the competitiveness of churches, that the Catholic Church in Poland after 1989, that is, after the fall of socialism, was faced with the challenges related to its former position of a monopolist that did not have to, as the beacon of patriotism and freedom, compete with other religious orders. For these reasons, Catholic Church in Poland has difficulties in communicating with the state and the society, including its followers. The author suggests that the Church officials often depend on the state’s help, especially legislation that is favourable to them and takes the burden of convincing people about their rights and values off their shoulders. It seems that this strategy, despite its “totalitarian” character or perhaps because of it, has been quite effective, which is reflected in increasing social support for religion in schools, as confirmed by statistics below.

The data shows an upward trend in the social acceptance of teaching RE in schools as well as a decrease in the number of its opponents, which is illustrated by the chart:

Should religion be taught in public schools? Respondents’ answers by date
IX ‘91 IV ‘93 VII ‘93 I ‘94 VII ‘94 VII ‘07
Definitely yes 23% 21% 22% 20% 24% 36%
Rather yes 34% 34% 31% 37% 31% 36%
Rather not 23% 19% 18% 19% 19% 12%
Definitely not 19% 22% 25% 19% 22% 12%
Hard to say 1% 4% 4% 5% 5% 4%

Based on: Opinions about teaching religion. Research summary. Polish Public Opinion Centre (CBOS) BS/119/2007, Warszawa, Lipiec 2007 http://www.cbos.pl/SPISKOM.POL/2007/K_119_07.PDF

 

When it comes to teaching kindergarten students, the same study reveals that public opinions are rather divided.  A bit more than a half of respondents (53%) believes that religion should be taught in public kindergartens, while two fifths of them (41%) takes the opposite view.This does not change the fact that religious minorities and non-believers still need to have their rights protected.Their situation, taking into account the increasingly widespread acceptance of religion in public schools, is becoming more and more difficult.

The study also paints a picture of the content which, according to the Poles, should be taught in RE classes. More than a half of the people surveyed (57%) believes that these lessons should present knowledge about various beliefs and religions, while a bit more than one third of them (36%) thinks that the curriculum should concentrate mostly on the rules of the Catholic faith.The practitioners – teachers and scientists – are of similar opinion (Olszewski 2010: p. 194). This is also a proof for the existence of a certain cultural climate allowing for religious tolerance, which, in turn, should be used for promoting anti-xenophobic attitudes. This, however, does not translate into the respondents’ empathy regarding potential threats to the rights of those not professing the Catholic faith. The question: Can the hanging of a cross in public places, such as classrooms, be considered a violation of the freedom of non-believers? Was responded in the negative by 60% of the respondents and by only 33% in the affirmative. 7% did not give their opinion (CBOS, BS/170/2013).

Both in the 1990s, when introducing RE in schools (Kuroń and Żakowski 1997: p.182), and at present (Paprzycki 2015: p.61), attention has been called to the fact that turning religious education into a school subject that is not respected by the youth, strips it of its sacrum. Paprzycki notes that introducing RE in schools could be perceived as a kind of coercion and the result of an agreement between the church and the world of politics, which might cause teenagers to rebel. According to the author, the said changes in the education system did not bring about an explosion of religiousness among the school learners, so the present state of things turned out to be rather a manifestation of the church gaining formal influence and the state authorities’ submission rather than an evangelical success.

Besides, studies conducted in the first 5 years after introducing religion in schools, already showed that certain non-religious motivations in taking up RE, tended to prevail. There were often related to pragmatic and conformist attitudes. The influence of the family and the pro-religious climate at schools were said to be the most prominent factors. Still, the authors were concerned by the fact that every one in four students declare that non-attending RE and the subsequent lack of grades may result in troubles, which, according to the authors, proves that there exists a cultural climate in Poland that will only strengthen the conformist attitudes towards RE classes.[12] And, as may be noted, their prognosis was correct.

The Catholic priests also see certain difficulties inherent in catechesis being taught in school. Attention is being paid (Tułowiecki 2010: p. 125-127) to the weakening bond between the children and the parish and moving the religious relations from the ecclesiastical organization to the school’s grounds as well as different relations with the parents who expect to treat religion as the provision of a certain service, without making any contribution to their children’s religious upbringing. The priest formulating these opinions also views the collision between the religious reality and the reality of a dynamic youth environment within the confines of a single institution, which performs both educational and pedagogical functions, as a threat. The author writes, for example about the confrontation with modern pluralism and postmodernism in the atmosphere of axiological turmoil.

It thus can be noted that almost 30 years’ practice of teaching RE in the Polish schools has brought about a particular social situation becoming established and strengthened, but it did not eliminate all the conflicts, which, considering their nature, seems impossible.

A major threat related to the common presentation of a single worldview, especially using the authority of the state leads to the unification of attitudes and worldviews, which tends to inhibit creativity and reduce the cultural wealth of this society. The opportunism of public powers and readiness to comply with the demands of the church officials contribute to the discrimination of non-believers. Since the fundamental principles of democracy are the principle of equality and the principle of the state as the common good of all its citizens, public schools should be neutral with regard to worldviews.

 

References

 

Agnosiewicz M., Wprowadzenie religii do szkół, 2002, http://www.racjonalista.pl/kk.php/s,434

Bartnik C. S., „Słowo”, 3 VI 1993, cyt za: Agnosiewicz M., Wprowadzenie religii do szkół, 2002, http://www.racjonalista.pl/kk.php/s,434

Dostępność lekcji religii wyznań mniejszościowych i lekcji etyki w ramach systemu edukacji szkolnej. Analiza i zalecenia 2015, Biuletyn Rzecznika Praw Obywatelskich, Zasada Równego Traktowania Prawo I Praktyka Nr 17.

Kuroń J., Żakowski J. (1997), Siedmiolatka czyli kto ukradł Polskę?,Wrocław: Wydawnictwo Dolnośląskie.

Mill J. S. 2012, Utylitaryzm. O wolności, Warszawa, Wydawnictwo naukowe PWN

Noelle-Neuman E., 1974 , The Spiral of Silence: A Theory of Public Opinion, Journal of Communication, vol. 24, nr.3, p. 43-51

Olszewski B.(2010), Konflikt strukturalny na przykładzie nauczania religii w szkołachin: M. Tabernacka, R. Raszewska-Skałecka (red.) Płaszczyzny konfliktów w administracji publicznej, Warszawa, Wolters Kluwer

Paprzycki J., 2015, Prawna ochrona wolności sumienia i wyznania, Warszawa, Wydawnictwo C.H.Beck

Słowik K. Beczek. W. (2015), Religię wprowadzono do szkół tylnymi drzwiami i na szybko. “Miałem telefony z episkopatu”.http://wiadomosci.gazeta.pl/wiadomosci/1,114871,18941898,religie-wprowadzono-do-szkol-tylnymi-drzwiami-i-na-szybko-mialem.html

Tułowiecki D., 2010, Dwadzieścia lat religii w szkole – nadzieje, trudności, wyzwania. Próba refleksji socjologicznej, in K. R. Kotowski, D. Dziekoński (red.) Dwadzieścia lat katechezy w szkole, Warszawa-Łomża, Wydawnictwo Uniwersytetu Kardynała Stefana Wyszyńskiego w Warszawie

Tyrała R., 2014, Bez Boga na co dzień. Socjologia ateizmu i niewiary, Kraków, NOMOS

Wilkinson, K. Pickett, 2011, Duch równości. Tam gdzie panuje równość wszystkim żyje się lepiej, Warszawa, Wydawnictwo Czarna Owca

Wiśniewska K., Religia na maturze możliwa w 2021 r.? Kościół dogadał się z rządem Beaty Szydło,2016, http://wyborcza.pl/1,75398,20126283,religia-na-maturze-mozliwa-w-2021-r-kosciol-dogadal-sie-z.html?disableRedirects=true

 

Authentic sources of opinions

Niesiołowski i Grodzka o religii. “Szkoła od edukacji, Kościół od katechezy” czy “im więcej religii tym lepiej”?, http://www.tvn24.pl)https://www.tvn24.pl/wiadomosci-z-kraju,3/niesiolowski-i-grodzka-o-religii-szkola-od-edukacji-kosciol-od-katechezy-czy-im-wiecej-religii-tym-lepiej,394666.html

Społeczna kampania „Szkoła to nie kościół”

OŚWIADCZENIE, ŻE DZIECKO NIE BĘDZIE UCZĘSZCZAŁO NA RELIGIĘ WE WNIOSKU O PRZYJĘCIE DO SZKOŁY – INTERWENCJA FUNDACJI, https://wolnoscodreligii.pl/wp/oswiadczenie-ze-dziecko-bedzie-uczeszczalo-religie-we-wniosku-o-przyjecie-szkoly-interwencja-fundacji-2/

http://rownoscwszkole.pl/o-projekcie

Religia w szkołach? “Chcemy, żeby płacił za to Kościół” http://www.tvn24.pl/wiadomosci-z-kraju,3/spor-o-finansowanie-z-budzetu-panstwa-lekcji-religii-w-szkolach,526692.html

http://wolnoscodreligii.pl/wp/kampania_spoleczna_szkola_to_nie_kosciol/

 

Statistics and study reports

Opinie o nauczaniu religii. Komunikat z badań. Centrum Badania Opinii Społecznej, BS/119/2007, Warszawa, lipiec 2007 (CBOSBS/119/2007) http://www.cbos.pl/SPISKOM.POL/2007/K_119_07.PDF

Religia i kościół w przestrzeni publicznej. Raport z badań. Warszawa, grudzień 2013 (CBOS BS/170/2013)

file:///C:/Users/IM/Documents/Konferencje%20wystąpienia/Religia%20w%20szkole%20lub%20poza%20szkołą/Reigia%20i%20kościół%20w%20przestrzeni%20publicznej%202013.PDF

Religia w systemie edukacji. Komunikat z badań, Centrum Badania Opinii Społecznej, BS/136/2008. Warszawa, wrzesień 2008  (CBOS BS/136/2008)

http://www.cbos.pl/SPISKOM.POL/2008/K_136_08.PDF

Respektowanie wolności sumienia i wyznania w szkole publicznej Raport. Stowarzyszenie na rzecz Państwa Neutralnego Światopoglądowo NEUTRUM 1996, Warszawa

Struktura administracyjna Kościoła katolickiego w Polsce i podstawowe statystyki. GŁÓWNY URZĄD STATYSTYCZNY. Notatka informacyjna opracowana wspólnie z Instytutem Statystyki Kościoła Katolickiego SAC, Warszawa 2017, file:///C:/Users/IM/Downloads/struktura_administracyjna_kosciola_katolickiego_w_polsce%20(1).pdf

Struktura narodowo-etniczna, językowa i wyznaniowa ludności Polski. Narodowy spis powszechny ludności i mieszkań 2011, Główny Urząd Statystyczny, Warszawa 2015, file:///C:/Users/IM/Downloads/struktura_narodowo-etniczna.pdf

 

Endnotes

1          20 years of religion in schools, http://fakty.interia.pl/religia/news-20-lat-lekcji-religii-w-szkolach,nId,886445

2          Ibidem.

3          file:///C:/Users/IM/Downloads/struktura_narodowo-etniczna.pdf

4          http://wolnoscodreligii.pl/wp/kampania_spoleczna_szkola_to_nie_kosciol/

5          http://www.cbos.pl/SPISKOM.POL/2007/K_119_07.PDF

6          OŚWIADCZENIE, ŻE DZIECKO NIE BĘDZIE UCZĘSZCZAŁO NA RELIGIĘ WE WNIOSKU O PRZYJĘCIE DO SZKOŁY – INTERWENCJA FUNDACJI,https://wolnoscodreligii.pl/wp/oswiadczenie-ze-dziecko-bedzie-uczeszczalo-religie-we-wniosku-o-przyjecie-szkoly-interwencja-fundacji-2/

7          http://rownoscwszkole.pl/o-projekcie

8          http://www.tvn24.pl/wiadomosci-z-kraju,3/spor-o-finansowanie-z-budzetu-panstwa-lekcji-religii-w-szkolach,526692.html

9          http://rownoscwszkole.pl/o-projekcie

10      Respektowanie wolności sumienia i wyznania w szkole publicznej Raport. Stowarzyszenie na rzecz Państwa Neutralnego Światopoglądowo NEUTRUM 1996, Warszawa, p. 9-16.

11        Ibidem, p. 18.

12        Respektowanie wolności sumienia i wyznania w szkole publicznej Raport., p. 13.

Human Rights and International Relations. Some Remarks

This special issue of Nordicum-Mediterraneum contains select proceedings from the meeting of the Nordic Summer University (NSU) research circle “Human Rights and International Relations”. The meeting took place in Wroclaw, Poland, from the 24th to the 26th of February 2017, where we were very well received by the University of Wroclaw, for which we thank them warmly.

The program of the research circle, “Human Rights and International Relations”, runs from 2015 to 2017. This circle explores how human rights militancy and more generally the protection of human rights are affected by the international human rights regime and the way this regime enters state relations, and it also examines how the international human rights regime modifies the relations between states and how this is explained in international relations theory.

The contributions from this circle address the issue of human rights implementation. What happens when universal principles are translated into concrete action. Magdalena Tabernacka analyses the political battles surrounding the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence. Barbara Gornik shows how the plan to redress the erased residents of Slovenia was derailed. Athanasia Petropoulou demonstrates how visions of European citizenship fail the test of reality. Liudmila Ulyashyna reflects on how human rights law can be rooted into national legislation through education, in order to enhance the implementation. Eyassu Gayim addresses the relationship between human rights law and humanitarian law, and reflects on the nature of the human being and its rights in both of them. If they are based on the same fundamental considerations, why implementing them separately? Mogens Chrom Jacobsen challenges common views about Protestantism as the originator or foremost promoter of human rights. Implementation often depends on how human rights conform to pre-existing ideas about religion and politics, but such conformity can also be constructed to fit the purposes of the moment.

An additional contribution by long-time collaborator of Nordicum-Mediterraneum, Prof. John McMurtry, is also included, in which the worrisome implications of Brexit for human rights in the UK are discussed, given their EU-based emanation, with special emphasis on labour, environmental and financial regulation. McMurtry, who was Honorary Theme Editor for UNESCO’s Encyclopedia of Life Support System, authored therein the encyclopaedia of philosophy called “Philosophy and World Problems”. It is in the same spirit that he offers his contribution to Nordicum-Mediterraneum, in the hope of prompt and wide circulation. Consistently, the text is listed in a new category called “Philosophy and World Affairs”.

The abstracts of the published papers can be found below, as these were submitted by the authors:

Athanasia Petropoulou

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

Transformations of the notion of citizenship in today’s globalized context brings us closer to what Yasemin Soysal calls a post national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization of rights to non-nationals that initially were only attributed to members of the polity. While this vision has proven to be rather relevant in analysing changes in contemporary membership formations, it fails in some measure to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The current so called “refugee crisis” in Europe shows the predicaments of populations seeking to escape from war and deprivation and the uncertain legal status of these populations, whose rights are seriously impaired. Drawing on the notion of the “right to have rights” the study aims to explore how the European responses in this context, based on strong inclusion-exclusion mechanisms, can be pertinent for analysing and capturing current transformations of the notion of European citizenship and its future developments. In this respect, the current shortcomings of the international human rights regime can help us reconsider the foundation and notion of European citizenship. It is further suggested that the institution of European citizenship in its current form needs to be superseded, in order to attain a truly cosmopolitan content and to provide a foundation for a universalistic human rights regime. The main proposal presented in this direction, stresses the need to rethink human rights in terms of political practices and to “rediscover” the revolutionary heritage of human rights from an Arendtian perspective.

Barbara Gornik

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

In 1992, during the process of gaining national independence, the Slovenian government unlawfully erased 25,671 individuals, mainly citizens of other republics of the former Yugoslavia from the Slovenian Register of Permanent Residents. These individuals, who later become known as the Erased, became irregular foreigners; nevertheless, many of them continued to live in Slovenia for more than a decade without enjoying basic human rights. In 2012 the European Court of Human Rights in the case of Kurić and others vs. Republic of Slovenia held unanimously that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human rights. Following this judgement the Slovenian government adopted a compensation scheme for the Erased, where it introduced the criteria determining conditions for their redress. Building on this, the article reflects on the political and legal construction of victimhood and reveals the elements that constitute the victims of human rights violations. The article highlights the notions of political loyalty, legal conformity and territorial attachment as one of the most decisive elements of victimhood. In this manner it shows that the subjectivity of victims in the case of the Erased is not defined within the human rights discourse but is grounded in nationalist terms and categories.

Eyassu Gayim

Humanity and Human Rights: The contours of international law

Laws regulate conducts by responding to social and political requirements. This holds true for international law as well, which now follows two separate tracts, one for international human rights law and another one for international humanitarian law. If these two branches of law are intended to protect the dignity and worth of human beings as it is often said, why separate them? Does humanity really exist? If it does, how does it relate to human rights? If the two are distinct where do they converge? This article highlights these questions by revisiting the contours of international law.

Liudmila Ulyashyna

Human Rights Education for lawyers: A Case Study Into the Universality and Its Relativism

Normative universality in the international human rights law shall be rooted into national legal contexts for its effective implementation. Human Rights training for lawyers ensures that lawyers receive appropriate education for the practical application of the principle universality. The case study shows that learners often lack the knowledge of the peculiarities of international human rights law, which differ from the ”classical” public law notions. Human rights training curricula should include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency. Concepts of ”International Human Rights Standards”, ”Implementation and de facto implementation”, ”Status and Role of Individual/Human Rights Defender” being delivered to learners increase their knowledge and awareness of the direct applicability of international human rights norms and make them effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

Mogens Chrom Jacobsen

Protestant Origins of Human Rights Challenged

This paper will challenge common views about Protestantism as the originator or foremost promoter of human rights. The idea of a Protestant origin is launched by Georg Jellinek and disputed by Emile Boutmy. The idea is still current and John Witte can thus claim that Protestantism was in part a human rights movement. The point of departure for this strain of thinking is religious toleration, which is seen as a particularly Protestant achievement. We will argue that a more precise notion of what 18th century human rights were and a closer look at mainstream Protestant political philosophy will tell another story.

Magdalena Tabernacka

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence in the Polish Social Safeguard System

The ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence in Poland was preceded by a heated debate. From the very beginning it was the object of political battles between the conservative and liberal circles. Culturally and socially conditioned position of women has influenced its operation and the scope of its implementation. The Convention is a universally binding tool which guarantees the protection of human rights in events of violence against the woman and children. The case of this Convention in Poland proofs the existence of a universal European understanding of human rights protection standards. The Convention thus has a protective function not only for individuals but also, in a broader context, for the common European cultural identity.

John McMurtry

 

Is Brexit a Neo-Liberal Coup against 45 years of Life-Protective Law and Regulation?

The self-maximizing growth of private-money power over all life and life support systems – life capital in a word – to exploit for non-producer profit is not yet recognized as a master degenerative trend built into the ruling meta program of which Brexit and Trump are the latest Anglo-American expressions. Central to this unseen meta trend is the compulsive dismantling of life-protective law and rights whose masking justification has shifted from ‘globalization’ to ‘nationalism’. The Left is befuddled. It sees the anti-Labour implications in both the financialized EU and the de-regulating Brexit with no coherent program to overcome both. The Right blindly follows the inner logic of the ruling economic model while Liberals offer only partial and incompetent market fixes for collective life capital sustainability. All fail to see Brexit’s giant step towards life capital degeneration and eco-genocide at the margins as environmental and civil commons are stripped of their public funding by privatization and de-regulation.  The cumulative carcinogenic conversion of organic, social and ecological life organization into ever faster private money-profit sequences multiplying to the unproductive few is the predictable system result.

 

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

The 15th December 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its judgement in the case of Khlaifia and Others v. Italy. The judgement concerns the detention of undocumented immigrants at the Italian borders and their subsequent expulsion from Italy to Tunisia. Whilst the facts of the case took place in the immediate aftermath of the Arab Spring in 2011, the case is evocative of the so-called “refugee crisis” and the predicaments of millions of third-State nationals seeking to cross the European borders.

Transformations in contemporary configurations of sovereignty, citizenship and rights have made many scholars argue that we are closer to a post-national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization to non-nationals of rights which were initially attributed only to members of the polity (Soysal, 1994). According to this approach, the institutionalization of human rights on the international level and the undermining of national sovereignty are indicative of the shifting of the basis of the entitlement of rights from nationality to universal personhood (Cohen, 1999). While this vision has proven rather pertinent in analysing changes in contemporary membership formations, it fails to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The fate of the people, referred to indistinctively as “asylum seekers”, “refugees”, “undocumented” or “illegal immigrants” in contemporary’s public discourse, is inextricably linked to the paradox and the perplexities of the contemporary “human rights regime”. Whereas the institutionalization and global expansion of human rights norms in the post-war era and the codification of the right to asylum constitute major advancements regarding the protection of the human person, the contemporary “refugee crisis” demonstrates that the problem of “rightlessness” can be still present in the so-called “age of rights” (Henkin, 1990).

In fact, the problems encountered by different categories of immigrants and refugees can partially be attributed to an implementation deficit, “a discrepancy between formal rights and their praxis” (Soysal, 1994). However, the difficulties of these groups in claiming some basic rights do not only result from external factors, but also reveal the limits of these norms. These groups, as Seyla Benhabib argues: “exist at the limits of all rights regimes and reveal the blind spot in the system of rights, where the rule of law flows into its opposite: the state of exception and the ever-present danger of violence” (Benhabib, 2004).

Drawing on the notion of “the right to have rights”, the phrase initiated by Hannah Arendt in her attempts to reconsider human rights in terms of a right to citizenship and humanity (Arendt, 1973) and the creative reading of Arendt’s critique of human rights by Ayten Gündogdu (Gündogdu, 2015), the present study aims to explore how the European responses to the current “refugee crisis”, based on strong inclusion-exclusion mechanisms which in their turn erode the human rights of refugees and asylum seekers, can be pertinent for capturing and analysing the notion of European citizenship and its future developments.

In the next two sections, it will be argued that the restrictive policies regarding the managing of the refugee crisis by the European Union needs to be directly associated with the shortcomings of the institution of European citizenship and its failure to contribute to the creation of a European demos. In this regard, the current failure of European citizenship to fulfil a universalistic ambition and to provide the foundation for a cosmopolitan political project cannot be considered without taking into account the shortcomings and inherent paradoxes of the human rights regime. In this respect, the failures in the European conception of citizenship are interrelated, though not interdependent, with the failures of the human rights regime, as it stands. In the third section, the paradoxes of the human rights regime and the question of rightlessness will be discussed, in order to show how this regime partakes in and exemplifies this failure. It is argued in the last part of this paper, that in order to reinvent the notion and content of European citizenship, we need to reconsider human rights. Rethinking human rights in terms of political practices is important in order to reinvent the notion of citizenship, as a foundation of a truly cosmopolitan polity, where human rights can be recognized to new subjects.

European Citizenship in a Post-National Context

European citizenship is one of the unaccomplished political projects of the European Union, seeking to give a popular legitimization to its construction and perpetuation. Having the protection of the person and human rights in the heart of its conception, European citizenship is primarily conceived as a legal relationship between the individual European citizen and the membership of the European polity. Without disregarding the connection between an individual and its nation State, which in fact constitutes a presupposition for the acquisition of European citizenship, the institution of the European citizenship aims at superseding both nationality and nationally confined citizenship, as the only forms of belonging in a polity.

The emergence of a “post-national” citizenship, according to some authoritative doctrines, is the result of transformations in the relationship between citizenship and the national State. European citizenship participates in this transformation, as it provides for a space where equal rights are recognized to European citizens irrespective of their nationality. In this context, while European citizenship was at its very beginning associated with internal mobility of labour and the creation of an internal market, progressively, it reflected concerns about the transformation of the single market into a People’s Europe.

The institution of European citizenship is to a considerable degree shaped by the tension between the two opposing dynamics, intergovernmentalism and supranationalism, the two major trends which dominate the policy and discourse on the subject (Kostakopoulou, 2007). The process carries with it fundamental ambiguities, contradictions, and tensions. The weakening of traditional state prerogatives with regard to the entry and residence of economically active or economically self-sufficient community nationals has been, in this respect, accompanied by the reinforcement of the dichotomy between citizens and aliens, be they resident third country nationals, migrants, asylum seekers or refugees. Processes of equalization thus coexist with processes of exclusion, and the relativization of the Member States’ borders is accompanied by the strengthening of the external frontiers of the Union and the relocation of migration controls to third countries (Kostakopoulou, 2007). The gap between “third country nationals with valid permits” and illegal migrants constitutes a direct challenge to the European citizenship’s cosmopolitan ambitions. This gap has to be directly associated with the restrictive asylum policies, which often fail to conform with the standards of the Geneva Conventions, the construction of a “space of Freedom, Security and Justice”, the criminalization of illegal immigration and the current rise of a nationalistic public discourse, as manifested in the rise of far-right political parties in Europe.

The external control of the borders of the European Union and their closure, the refusal to provide safe and legal routes for third country nationals in need of international protection are closely linked to the conditions under which the European identity is shaped and conceived. Consequently, the fight against illegal immigration raises the question of the symbolic borders determining the conditions of participation in a given political order. The fight against illegal immigration, which has been one of the goals of the creation of a “Space of Freedom, Security and Justice”, has fuelled the restrictive policies of the Union as regards the current “refugee crisis”. These policies have to be considered in the context of the broader procedure of the European integration and the shaping of a sense of belonging in the European Union as the foundation of the citizenship for the members of the European polity. In this perspective, the strategies applied by the European States reveal how Europe is constructing the figure of the “Other” and its own identity (Duez, 2008). As Etienne Tassin has rightly pointed out, “far from being a ‘collateral damage’ of European unification, illegal immigration could on the contrary be the heart of the problem” for it is impossible to accept “that this is nothing but a border police matter that would leave unscathed the unique logic according to which political Europe is structured” (Tassin, 2007).

In this regard, it is argued that the response provided by European institutions and States to the current immigration and refugee crisis is indicative of the shortcomings of the European citizenship and the European identity, the limits and contradictions of the human rights regime, the failure of the European demos as it stands and its cosmopolitan ambitions. The failure of the European Union to implement more inclusive policies and to provide a legal status conferring basic rights to undocumented immigrants or asylum seekers is a sign manifesting the disability of the European elites and institutions to conceive the project of European citizenship as a process of eroding identity boundaries and of creating a space where “universal rights” are applied. However, it can also be argued that the current crisis could constitute an opportunity to reconsider the concept of European citizenship and contribute to its transformation. If citizenship can be read as a historical process, European citizenship can also be seen as a laboratory of shaping new policies of belonging, thus extending some basic rights to non-members of the European polity and strengthening the “participation to collective self-government”.

Refugee Crisis and European Responses

Throughout Europe there are many migrants, primarily rejected asylum seekers, who live in a state of protracted legal and social limbo without any long-term prospects. About 60 000 refugees are stranded in Greece, where 26 400 are children, mostly Syrian, according to current estimations. The mass influx of displaced people, refugees, asylum seekers and immigrants has pushed the European foundations to its limits. The Member States have replied with border closings, erection of fences, racist and xenophobic reactions, and have reclaimed their sovereignty (Kapartziani, Papathanasiou, 2016).

Asylum seekers and migrants in Greece and other European countries face multiple human rights violations, including obstacles in accessing adequate protection, and reception conditions that are well below international human rights standards. The situation is particularly dire for people, such as pregnant women, female heads of households, unaccompanied children, people with disabilities, and the elderly.

Despite common, binding EU asylum standards, inadequate implementation and enforcement mean that there are deep disparities among EU member states with respect to procedures, reception conditions, and treatment of asylum seekers. These disparities are at the root of the distortions in the EU asylum system and explain many of the tensions and divisions among EU member states when it comes to addressing migration and asylum challenges (Human Rights Watch, November 2016).

The European policies in this respect reveal the fragility of human rights on which the European construction has been founded and shows that national considerations are central to how the European identity is generally conceived. However, the restrictive policies of the European Union manifest also the shortcomings of the universal human rights regime. Within this regime, the claims of undocumented immigrants, and even asylum seekers or refugees regarding access to basic rights, cannot be accommodated easily. In this respect, it would be pertinent to examine the case law of the European Court of human rights, one of the most prominent institutions in the field of protection of human rights in Europe. Reading the case law in the light of H. Arendt’s considerations on “statelessness” and “rightlessness” can help us understand the inherent paradox of human rights and the uncertainties of its current normative and moral foundations.

The Paradox of Human Rights and the Question of Rightlessness

The multiplication of “waiting zones”, “hot spots” and other similar sites within the context of contemporary immigration controls reveals the challenging problems that various categories of migrants encounter as they claim and exercise human rights. I will try to approach these problems by turning to one of the key arguments in Hanna Arendt’s reflection on statelessness in the first half of the 20th century: “The stateless found themselves in a ‘fundamental situation of rightlessness’”, Arendt claims, “as they lost not only their citizenship rights but also their human rights. In the absence of a political community that could recognize and guarantee their rights, the stateless were deprived of legal personhood as well as a right to action, opinion and speech” (Arendt, 1973).

As Güdongdu notes, from an Arendtian perspective, personhood, or the artificial mask provided by law, is important, as it allows public appearance without the pervasive fear of arbitrary violence and enables rights’ claims to be articulated (Arendt, 1990). Without this mask, one is relegated to a certain form of civil and social death. However, legal personhood remains an artifact and not an inherent essence. It is therefore necessary to attend how it can be effectively unmade or undermined in certain conditions. Possibilities of qualifying and evading personhood are nowhere more visible than in the cases of asylum and immigration, due to the centrality of the principle of territorial sovereignty to the ordering of the international system. Given these possibilities, “rightlessness” must be reconsidered as a critical concept that can alert us to various practices that undermine the legal personhood of migrants. Rightlessness in this regard is thus conceived not as the absolute loss of rights but instead as a fundamental condition denoting the precarious legal, political, and human standing of migrants (Güdongdu, 2015).

I propose to analyse the limits and exclusions of the existing inscriptions of personhood in human rights law by examining the recent case of the ECtHR referred to in the beginning of this paper. The case is about detention at the Italian borders (including the island of Lampedusa) of aliens, namely undocumented immigrants, and their expulsion from Italy to Tunisia. Whilst the events took place in 2011, in the immediate aftermath of the Arab Spring, the issues raised before the Court by the applicants and the principles outlined by the judgement appear relevant to the current “refugee crisis” and its management by the European Union institutions and member States. The case concerns the arrival of the applicants, three Tunisian migrants, on the island of Lampedusa, their initial placement in a reception centre and subsequent confinement on two ships moored in Palermo harbour, followed by their removal to Tunisia in accordance with a simplified procedure under an agreement between Italy and Tunisia of April 2011. The applicants were complaining about the conditions of their detention, a violation of the right to personal liberty, as well as a violation of the prohibition of collective expulsions.

It is to the credit of the Court that the judgement corroborates its position on the value of personal liberty, by reminding States that legal certainty is a crucial principle when it comes to a deprivation of liberty, and it cannot be set aside “even in the context of a migration crisis” (§106). However, the Court found that the conditions in the Lampedusa reception centre did not amount to inhuman or degrading treatment. In this context, the ECtHR reiterated that an increasing influx of migrants cannot, per se, absolve a State of its obligation under Article 3, but conducted, so to say, a “reality check” of the situation suffered by the applicants vis-à-vis the actual situation in which Italy found itself due to the migratory pressure at the time of the Arab Spring (Venturi, 2017).

The Grand Chamber affirmed, firstly, that “it would certainly be artificial” not to consider that the undeniable hurdles faced by the applicants originated from a situation of extreme difficulty confronting the Italian authorities at the relevant time. Secondly, the Court observed that the applicants were not asylum seekers and therefore, they “did not have the specific vulnerability inherent in that status” (§194). Conversely, the Grand Chamber recalled that the applicants were in a weakened physical and psychological condition when held at the centre, due to the dangerous sea crossing (§194). Nevertheless, according to its view, the applicants did not bear the burden of traumatic experiences that had justified the vulnerability approach adopted in a previous case MSS v. Belgium and Greece. Furthermore, the Grand Chamber also pointed out that the applicants did not belong to any of the categories traditionally regarded as vulnerable, but they were young males without any particular health issue.

These arguments seem to corroborate the ECtHR’s nuanced approach to the notion of vulnerability, which, on the one hand, is inherent in all asylum seekers while, on the other hand, is attached to certain individuals because of specific conditions that put them in a more disadvantaged position. Besides, the Grand Chamber’s reasoning seems to give a hint on what vulnerability is not: being a healthy, young man, albeit with irregular status (Venturi, 2017). In any event, the utility of the notion of “vulnerability” in the Court’s case-law can also be criticized, because the legal status of the refugees and asylum seekers in contemporary international law is already founded, primarily, on their “vulnerable” status. The notion can also be considered responsible for introducing further differentiations of the status of non-nationals, be they refugees, illegal immigrants or asylum seekers.

As to the violation of Article 4 of Protocol 4 to the ECHR, concerning the prohibition of collective expulsion, the Grand Chamber found no violation. In the Court’s view, the “relatively simple and standardized nature” of the refusal of entry orders which were merely based on the applicants’ nationality due to the bilateral agreement in force between Tunisia and Italy, could be explained by the fact that the applicants did not allege any fear of being returned or any other legal impediment. In the ECtHR’s opinion, Article 4 of Protocol 4 does not warrant an unfettered right to an individual interview, but only the effective possibility to submit arguments against deportation. As the applicants had this possibility, but they did not raise any argument to challenge their expulsion, the latter did not qualify as “collective” in nature.

The judgement of the Court seems to grant States a large margin of action when dealing with irregular migrants. The judgement gives rise to many conclusions. As some scholars have argued, human rights are ambivalent, they have both “jurisgenerative” and “jurispathic” dimensions (Cover, 1984). We become aware of the “jurisgenerative” dimension of law when existing rights are “reposited, resignified, and reappropriated by new and excluded groups”, as Seyla Benhabib notes (Benahbib, 2006). But it is equally important to look at how human rights law gives rise to “jurispathic” processes when its norms are invoked to affirm the sovereign right to detain or deport rejected asylum seekers and undocumented immigrants. The Khlaifia case shows that the Court recognizes some rights to undocumented migrants, thus extending personhood to migrants, but also upholds the principle of territorial sovereignty that enables a state to expel these migrants, a practice amounting to the unmaking of that personhood.

The judgement also demonstrates that the body has become a crucial site for claiming rights, giving rise to what Didier Fassin aptly calls “biolegitimacy” (Fassin, 2005). It is in the suffering body of the migrant, refugee or asylum seeker that States, courts and refugee advocates will look for some irrefutable truths. The status of the vulnerability as a bodily narrative becomes central also in the reasoning of the Court. The attempt to adjudicate rights claims based on suffering bodies, risks eroding the personhood of migrants who, like the ones in the Khlaifia case, cannot prove any particular suffering (Gündogdu, 2015).

The notion of “vulnerability” closely connected to the suffering body of the migrant points to another arbitrary rule faced by migrants. This new rule is directly related to the compassionate humanitarianism, which can be described as the fact that States, courts and rights advocates turn to compassion to make decisions about suffering. This “new moral economy” risks unmaking the equal personhood of migrants, rendering the rights dependent on a capricious moral sentiment (Gündogdu, 2015). As a result, we are not too far away from Arendt’s argument that the stateless find themselves in a fundamental condition of rightlessness because of their dependence on goodwill or generosity of others (Arendt, 1973). The Court in Khlaifia case reproduces the humanitarian tendency to depict refugees as a vulnerable category, and draw as a consequence a distinction with other categories of migrants who are placed outside the realm of vulnerability. But that move places the dichotomies at the intersection between a moral economy centred on compassion and an administrative rationality directed at the management of vulnerable populations. Thus, from an Arendtian perspective the Court ends up subjecting the rights of migrants to arbitrary decisions about the conditions under which a human body can be considered as suffering and worth of protection (Gündogdu, 2015).

The judgement of the European Court is indicative of the tensions inherent to the contemporary human rights regime and its connection to the notion of State sovereignty. The case also underlines the dangers of “subjecting” the implementation of human rights on moral considerations that can prove to be highly relative or arbitrary. In the next chapter, it is argued that the current “refugee crisis” points primarily to a crisis of human rights within Europe and beyond, implying a need for a reconfiguration of citizenship beyond the nation-state framework and the notion of sovereignty. In this regard, we need to rethink of human rights in the light of a “reinvented” citizenship. The European citizenship, as the first historical precedent with cosmopolitan aspirations, could provide a space for experimentation of this new form of belonging to a truly universalistic human rights regime.

Forming a European Citizenship: The Failure of a Cosmopolitan Ambition or a Chance for the Future of Europe?

How can we overcome the inherent tensions and paradoxes of the human rights regimes and reflect accordingly on the future of citizenship in Europe? Has the notion of European citizenship the potential of reinventing the European polity where equal rights are offered to all? Is the concept of EU citizenship still appropriate today? How can European Citizenship respond adequately to the current challenges and fulfil the cosmopolitan dimension it has?

It is here argued that in the current refugee crisis, the institution of European citizenship could have provided a basis for a unique experience, consisting in stretching social and political bonds beyond national boundaries and permitting the creation of a new, more inclusive political community. However, EU citizenship in its current form needs to be superseded.

Dora Kostakopoulou develops a “constructive approach” to citizenship, as a promise held by the European Union citizenship (Kostakopoulou, 2007). One crucial feature of “constructive citizenship” is that it postulates a vision of inclusion and equal democratic participation in a community where difference is valued and appreciated and not simply tolerated. Such a conception of citizenship embodies a novel and more flexible conception of demos: it separates demos from ethnic and cultural commonalities and reconfigures it as a political process of participatory enactment. According to this vision, European citizenship should carry with it an ethical responsibility: the responsibility to be nourished by institutions, practices, rules and ideas embodying a commitment to social transformation, democratic reform and respect for the Other.

Etienne Balibar proposes to create new modalities and new perspectives of accession to citizenship, which can even transform its definition. He cites for example the generalization of the jus soli in the whole European Union.  According to this scholar, it is urgent for the European Union to act in order to respond to the humanitarian crisis at its borders. An ideological change is in this regard necessary. As Balibar notes: “We can say that Europe will either be realized by revolutionizing its vision of the world and its societal choices or it will be destroyed by denying realities and by holding onto the fetishes of the past” (Balibar, 2015).

In this regard, it has also been stressed that it would be more in keeping with the nature of the European entity to relaunch the movement for the “denationalization of rights”. This would benefit European citizens, but also those who do not belong to the “inner” nations and it would progressively transform Europe into the place where a “universality of rights” is achieved, founded in a fractional loosening of the bond woven between nationality and citizenship (Lacroix, 2010). In this sense, granting equal rights to illegal immigrants and asylum seekers, mainly by attributing to them the right to belong to the EU political community is essential for reimagining the symbolic and ideological boundaries of the “European polity” and its “cosmopolitan dimension”.

In her turn, inspired by Arendt, Ayten Güdogdu, proposes an original reading of her “right to have rights”. According to this reading the puzzling formulation of a “right to have rights” can be read as an invitation to rethink human rights in terms of political practices of founding. The author is further drawing on the term introduced by Etienne Balibar “equaliberty” (égaliberté) (Balibar, 2010), which foregrounds the inextricable connection between equality and freedom in modern democracy, affirms a universal access to politics, and animates struggles that contest exclusions from rights and citizenship. This reading highlights that the “right to have rights” marks a new beginning radically interrupting the existing regime of human rights and introducing “a hiatus between the end of the old order and the beginning of the new” (Arendt, 1990).

This approach also underlines that the contemporary institutional mechanisms concerning the protection of human rights cannot always respond to new problems of rightlessness. It also highlights that human rights are not simply normative constrains on an established constitutional order but owe their origins as well as their ongoing preservation to political action (Güdogdu, 2015).

The struggles for the rights of the so-called “illegal immigrants” or the “sans papier” in France, as well as the vague of solidarity raised in Greece and everywhere in Europe in support of the refugees trying to escape from war and suffering reveal that human rights are not simply normative constraints regulating an existing political and legal order but also political inventions that can constitute a new order, bring to view new subjects of rights, and reconfigure existing relations between rights, citizenship and humanity (Güdogdu, 2015). Understood in these terms, human rights have an “insurrectional” dimension, to use Etienne Balibar’s term, because they can turn against the constituted political and normative order for the purposes of founding a new one (Balibar, 2004).

The insurrectional dimension of human rights, configured in the political struggles, changes the boundaries of our political and normative universe, as it introduces us to new subjects who were formerly not recognized as human beings entitled to rights. This point shares similarities with Seyla Benhabib’s proposal to understand human rights in terms of “democratic iterations” that involve practices of contesting and redefining existing prescriptions of rights (Benhabib, 2004). These struggles reveal that human rights understood as a “right to have rights” ultimately depend on a type of citizenship enacted by those who do not have a legitimate standing and yet who thrust themselves into the public spaces from which they are excluded. This paradoxical kind of citizenship involves practices of claiming rights that one is not entitled to according to prevailing legal and normative frameworks (Güdogdu, 2015). The political practices of founding and refounding are important not only for establishing the universal validity of human rights but also for reinventing and reaffirming citizenship, also in the context of the European Union, in the face of global transformations that continue to dilute it.

Inspired by the revolutionary heritage of the 18th century human rights declarations, Arendt’s “right to have rights” emphasizes the ineluctable historicity of human rights. These rights as products of historical contingency are also founded on the universal validity of the principle of “equality and liberty” (Claude Lefort), animating the struggles that have inspired the modern human rights declarations. In order to move beyond the deficiencies of the contemporary human rights regime, we need to reevaluate the revolutionary dimension of human rights, by considering them as an ongoing achievement that can challenge their instituted configurations, as well as those of citizenship. Enacting those rights presupposes thus a form of active political participation and action. Taking into account that illegal immigrants or asylum seekers have not a recognized legal standing within the instituted polity, political action takes necessarily the form of a political struggle contesting the established limits of citizenship and conditions of acceding to basic rights. A form of political solidarity by the members of the polity is also essential in this respect. Such practices of political action can contribute to the transformation of the practices of belonging, so that people, as the undocumented immigrants, who do not enjoy any rights or who have only limited rights in Europe, can aspire to a place in the European demos and to an extended human rights regime.

….

The responses of the European states to the current refugee crisis, as well as the responses of the institutionalized mechanisms in the field of the protection of human rights, such as the ECtHR, reveal the deficiencies of the system and the fragility of the human rights values on which the idea of the European demos is founded. Rethinking human rights in terms of political practices can help us reinvent the European citizenship, an institution with a cosmopolitan ambition. In an Arendtian framework, the struggles of new subjects challenging current configurations of human rights and citizenship can open the way to a truly cosmopolitan polity.

…….

The author would like to thank the participants of the Winter Session of 24th-26th February 2017 of the Nordic Summer University in Wroclaw for their comments, as well as particularly Mogens Chrom Jacobsen for his insightful remarks and suggestions on an earlier draft.

 

 

References

 

Case-Law

Khlaifia and others v. Italy, [GC], n° 16483/12, 15 December 2016.

MSS v. Belgium and Greece, [GC], n° 30696/09, 21 January 2011.

 

Reports

Human Rights Watch, EU Policies Put Refugees at Risk, An Agenda to Restore Protection, November 2016.

 

Bibliography

Arendt, Hannah, The Origins of Totalitarianism, Mariner Books, 1973.

Arendt, Hannah, On Revolution, London and New York, Penguin, [1963], 1990.

Balibar, Etienne, “What is a Politics of the Rights of Man?”, In Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, New York, Routledge, 1994.

Balibar, Etienne, We the People of Europe? Reflections on Transnational Citizenship, Princeton, NJ: Princeton University Press, 2004.

Balibar, Etienne, La proposition de l’égaliberté, Paris, Actuel Marx, Confrontations, Presses universitaires de France, 2010.

Balibar, Etienne, “Borderland Europe and the Challenge of Migration”, www.opendemocracy.net, 8 September 2015.

Benhabib, Seyla, The Rights of Others: Aliens, Residents and Citizens, Cambridge and New York: Cambridge University Press, 2004.

Benhabib, Seyla, Another Cosmopolitanism, Robert Prost (ed.), Oxford and New York, Oxford University Press, 2006.

Cohen, Jean L. “Changing Paradigms of Citizenship and the Exclusiveness of Demos”, International Sociology 14, no. 3, September 1999.

Cover, Robert, “Foreword: Nomos and Narrative”, Harvard Law Review, (1983-1984).

Duez, Denis, L’Union européenne et l’immigration clandestine: De la sécurité intérieure à la construction de la communauté politique, éditions de l’Université de Bruxelles, 2008.

Fassin, Didier, “Compassion and Repression: The Moral Economy of Immigration Policies in France”, Cultural Anthropology 20, N° 3, 2005.

Fassin, Didier, Humanitarian Reason: A Moral History of the Present, Berkeley and Los Angeles, University of California Press, 2012.

Gündogdu, Ayten, Rightlessness in an Age of Rights, Hannah Arendt and the Contemporary Struggles of Migrants, Oxford: Oxford University Press, 2015.

Henkin, Louis, The Age of Rights, New York: Columbia University Press, 1990.

Kapartziani, Chryssoula, Papathanasiou, Katerini, “The Refugee Crisis as a European Democratic Crisis”, Globalism: Journal of Culture, Politics and Innovation, 2016.

Kostakopoulou, Dora, “European Union Citizenship: Writing the Future”, European Law Journal, Vol. 13, No 5, pp. 623-646, September 2007.

Lacroix, Justine, “Is European Citizenship feasible?”, La vie des idées, 2010.

Lefort, Claude, “Human Rights and Welfare State”, Democracy and Political Theory, Cambridge, Uk, Polity Press, 1988.

Soysal, Yasemin Nuhoglu, Limits of Citizenship: Migrants and Postnational Membership in Europe, Chicago: University of Chicago, 1994.

Tassin, Etienne, « L’Europe cosmopolitique et la citoyenneté du monde », Raison publique n° 7, October 2007.

Venturi, Denise, “The Grand Chamber’s Ruling in Khlaifia and Others v. Italy: One Step Forward, One Step Back?”, Strasbourg Observers, January 2017.

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

The article analyses the political practice of human rights in the case of the erased residents of Slovenia. The term “Erased” refers to the 25,671 individuals, ethnically mainly Serbs, Croats, Bosnians, Macedonians, Montenegrins and Roma, who were unlawfully erased from the Register of Permanent Residents of Slovenia by the government after the break-up of the Socialist Federal Republic of Yugoslavia in 1992. The Erased were Yugoslav citizens who either did not apply for Slovenian citizenship or whose application was denied in the process of Slovenian state building. At that point, they were formally given the possibility to apply for a permanent residency permit, but in reality the newly adopted Aliens Act did not enable them to maintain their residential status. Hence, many of them became irregular foreigners and lost the political, social and economic rights they had once enjoyed.

The erasure was committed in secret and from 1992 to 1999 the general public was unaware about this event. It was only in 1999 after several unsuccessful legal complaints filed by the Erased that the Constitutional Court declared Article 81 of the Aliens Act unconstitutional and revealed the crime in its entirety. Paralysed by the futile political process of human rights reconciliation, eleven individuals filed a complaint against the Republic of Slovenia at the European Court of Human Rights in July 2006, which reached its final judgement in the case of Kurić and others vs. Republic of Slovenia (2012) and held unanimously that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human Rights. It took altogether twenty-one years for the political process of human rights redress to be concluded by establishing a compensation scheme for the Erased in 2013.

Close observation of the case of the Erased over the last decade has prompted significant questions about how human rights actually work in practice. Sadly, this case alludes to the fact that when faced with a situation wherein human rights are at risk, those responsible may not take immediate action nor offer the response needed to abolish the elements of human rights violation and abuse. This casts doubt on the efficiency of human rights, for if these rights which are supposed to represent the minimum standard of dignified life can be ignored for so long and with such particular lightness, even after the violation had been already legally established, we must then question and expose the factors which obstruct their implementation and diminish their potential for the individual and humanity.

This paper offers an analysis of the human rights practice in the case of the Erased focusing in particular on the political construction of their victimhood. By adopting the standpoint of anthropology of human rights, the article contextualizes the erasure and demonstrates how universal human rights were vernacularized (Engle Merry 2006), appropriated (Speed 2006, 2008) and reinterpreted within the Slovenian political setting in order to align with the values of the local community and the rules flowing from the existing political and legal order. The article begins with a brief introduction into the main ideas of the anthropology of human rights and continues by charting the context of the erasure. This is followed by an examination of the significance of legal residence in relation to human rights implementation. Thereafter I introduce the process through which the Erased became recognized as victims of a human rights violation and thus human right-bearing subjects. Finally, I examine the criteria for dividing “true” and “false” victims of the erasure revealing how human rights and victimhood construction operate within a political setting. In this manner, I expose elements of human rights discourse that are not seen as an obvious part but nevertheless a play major role when putting rights into practice.

An Anthropological Approach to Human Rights Practice

Human rights can be considered separately from the political structures by which they were formed and beyond the situations in which they are practised. If considered in a vacuum of legal documents, conventions and declarations regardless of their implementations, we note that human rights law generates a figure of rights built upon the human as its main subject and basic principles such as universality (Donnely 2003) human dignity (Carrozze 2013; Klein and Kretzmer 2002; Kateb 2011), human integrity (Rodley 2014) and equality (Clifford 2013; Moeckli, 2014). Human rights are often understood as legal categories in the instrumentalist sense as a tool for protection against the arbitrary power of the state, especially within the idea that the power of the state is not unlimited, that each individual has some autonomy and rights with which no authority can interfere (Osiatynski 2009: 1; Donnelly 2003).

Stemming from this, we can assert that human rights law constitutes a kind of culture in the sense that the discourse on rights is defined by particular characteristics—for example, a way of speaking, thinking, a construction of the self and sociality (Covan, Dembour and Wilson 2001; Riles 2006). Human rights law, however, is only one part of human rights articulations in a nearly endless array of human rights practices. Although I take human rights to be those rights enshrined in international human rights law, I also recognize the significance of the wider social and historical context which led to the emergence of human rights and their current practices. Therefore, I tend to rely on Goodale’s (2009: 378) description of rights as “a phrase that captures the constellations of philosophical, practical and phenomenological dimensions through which universal rights, rights believed to be entailed by common human nature, are enacted, debated, practised, violated, envisioned, and experienced”. This formulation is in line with anthropologists such as Cowan, Dembour and Wilson, (2001), Riles (2006) and Engle Merry (2006), and points to the position that human rights culture is best understood as a discourse with its own logic of operation, its own possibilities and limitations, which is not limited to law but also reflects and contributes to the understanding of perceptions about who we are, and what our social ideals and cultural values are.

In adopting an anthropological view of human rights it is important to recognize two relevant approaches that broaden the above position. The first approach is that of the ethnography of human rights, which examines how the global culture of human rights is subject to transformation by adopting and adjusting to the existing social values, power relations, and powerful structures, when used at the micro-level in a particular socio-cultural context (Cowan, Dembour and Wilson 2001; Engle Merry 2006, 2009; Goodale 2006, 2007, 2009) giving it a specific character that may depart from the official framework of universal human rights. At the heart of the focus here is the “translation” of the human rights principles into local situations by integrating local concerns into the interpretation and implementation of human rights. In line with Speed (2008) and her term “local appropriations”, and with Engle Merry (2006) and her concept of “vernacularization” of human rights, special emphasis is put on examining the processes of justification and actualization of human rights within the context of local settings and the never-ending negotiations between agency, culture, and power.

The second approach – critical anthropology of human rights – is complementary to ethnography, but tends to reflect critically on the concepts of society, culture, and human rights beyond their manifest declarative level to discover the power relations which reside within the human rights framework itself (Goodale 2009). Human rights law often operates with categories that at a first glance may appear to be self-evident and unproblematic. In this sense, recognition of the political element of the human rights regime is essential; as observed by Žižek, human rights as a supposedly “non” or “pre-political” phenomenon demonstrate “that every naturalization of some partial content as “non-political‘’ is a political gesture par excellence” (Žižek 2005: 125). Such an approach builds upon establishing a critical distance to human rights law in order to examine the political dimensions and power relations that reside within and reproduce a political world order that may finally not be entirely in line with the principles of human rights.

The category of a victim of a human rights violation is undoubtedly one place where a myriad of political dimensions and power relations intersect. If we take a closer look at how the figure of a victim is articulated in practice, either in international law or local contexts, we soon realize that victimhood is far from being clear-cut and unambiguous. Instead it points to the very issue of power relations by raising significant questions such as who counts as a victim of a human rights violation, what are the elements of the criterion for establishing victimhood, who determines the human rights redress and what constitutes the legitimacy of a human rights claim.

An anthropological approach to the question of victimhood construction draws attention to examining how political tensions which appear during the process are navigated in different ways. In this paper, I will demonstrate that the notion of territorial attachment, political loyalty and compliance with the legal order, readily entering the process of victimhood constitution and operating as an important element of interpretation and implementation of human rights despite having little or nothing to do with the idea of human rights as such. Following the standpoint of anthropology this should not surprise us, for if victimhood construction takes place in political discourse – the prime place for exhibiting nationalist rhetoric, pride, and self-glorification (van Dijk 1990) – it is expected that through the process of vernacularization, the values of human rights will be entangled with the values of the local political setting.

The theories of human rights which take humanity as their base obviously aim to create a connection of essentialism where it does not exist. We must agree with Foucault on his view that throughout history men have never ceased to construct themselves and their subjectivities in multiple series that never end and can “never bring us in the presence of something that would be “man.”” (Foucault 2002: 276). Human rights, as they exist in international law are rights constructed as a result of the knowledge and power relations of contemporary society and not something that exist beyond or independent of that knowledge and power. Victimhood is, in the same vein, a social construct, consisting of views, opinions, perceptions and social practices which define and demonstrate our understanding of humanity. The anthropological approach to victimhood construction is therefore not about examining the process of applying the language enshrined in international legal documents as a one-way process with an aim to resolve the cases of human rights violations. An analytical look beyond the essentialism offered by the rationality of human rights on the declarative level is required. Consequently, the task of analysing victimhood within human rights can therefore not be setting the interpretation to a level showing primarily how things should be – although this cannot be entirely avoided – but mainly to exposing how things are and why.

 

 

A Contextualization of the Erasure

The erasure from the register of permanent residents of the Republic of Slovenia in 1992 befell citizens of other republics of the former Yugoslavia who had not applied for Slovenian citizenship, whose application for citizenship had not been accepted by officials at the administrative units, and for those whose application for citizenship was rejected. Among the Erased, there were 20,311 adults and 5,360 minors, of whom 14,775 were men and 10,896 were women. They represent a heterogeneous group of people; some were internal immigrants from other republics of the former Yugoslavia who held common Yugoslav citizenship, while others were born and raised in Slovenia. Most had spent a significant part of their lives there and had developed personal, social, cultural, linguistic and economic bonds in their private and family lives.

The story of the erasure begins in the early 1990s’, after the separation from Yugoslavia.  One of the first documents of Slovene statehood, the Statement of Good Intent (1990), guaranteed, “the members of all other nations and nationalities their right to an overall cultural and linguistic development, and to all those who have their permanent residence in Slovenia that they can obtain Slovene citizenship, if they so desire”. On 25th June 1991, the Republic of Slovenia formally declared its independence and adopted legislation related to internal affairs, citizenship and sovereignty. In line with Article 40 of the Citizenship Act (1991) individuals who held citizenship from other republics of former Yugoslavia and who had permanent residency in the Republic of Slovenia were given the possibility to apply for Slovenian citizenship without additional requirements related to length of stay, language proficiency and material status or similar[1]. Under this article, approximately 171,000 out of 200,000 citizens of other Yugoslavian republics gained Slovenian citizenship (Zorn 2009).

Although the Slovenian government proved to be liberal in this regard, it had expressed exclusivist tendencies toward permanent residents of Slovenia from other Yugoslavian republics who did not wish to, could not, or were not eligible to obtain Slovenian citizenship. These individuals came under the rules of the Aliens Act (1991). They reasonably expected to be able to maintain their permanent residency status, however, Article 81 of the Aliens Act stipulated that a permanent residence permit could be granted if a person had been living in Slovenia for three years on the basis of a temporary residence permit. The decisive fact was that no such permits were needed for citizens of other republics of former Yugoslavia before the break-up of the country. This bureaucratic banality was used as an argument for taking away their status as permanent residents.

But the legal void of the Aliens Act was neither a mistake nor an unfortunate coincidence. The transcript of the 19th session of the then Assembly of the Republic of Slovenia from 1991 demonstrates that parliamentarians were conscious of the difficulties foreigners would face if the Aliens Act was passed without preliminary provisions for Yugoslav citizens which allowed them to keep their permanent residency. Member of Parliament, Metka Mencin, proposed an amendment to article 81 of the Aliens Act which could have prevented the erasure by suggesting that:

Citizens of the SFRY who are citizens of other republics and have not filed a request for citizenship of the Republic of Slovenia, but who do have a registered permanent residence or are employed in the Republic of Slovenia on the day this law takes effect, will be issued a permanent residence permit in the Republic of Slovenia.

(transcript of 19th Session of the Socio-political Chamber, 3rd June 1991).

On the 3rd of June 1991, they turned down the amendment to article 81 of the Aliens Act by two votes. On the 27th of February 1992, Minister of the Interior, Igor Bavčar, dispatched the Official Communication to local administrative units, instructing them to start “clearing up the records” and managing the status of all citizens of other republics of former Yugoslavia who did not apply for citizenship in the Republic of Slovenia by the stipulated deadline (MI, 1992a). Even though the Aliens Act did not provide a legal basis for such a procedure, 25,671 individuals were erased from the Register of Permanent Residents of Slovenia. These persons became known as the “Erased.” Some were deported, some left Slovenia of their own accord, others stayed on the basis of temporary work permits, while others had no choice but to live without legal residency status or even found themselves stateless. Three months after the erasure Bavčar, acquainted with the difficulties the Erased had been subjected to, argued in another Official Communication to the government that the previously existing rights of the individuals who had not applied for Slovenian citizenship or whose application had been rejected, needed to be ignored (MI, 1992b) as his standpoint was that they needed to be treated as foreigners entering Slovenia for the first time.

 

 

Legal Residence as a Condition of Human Rights

The Erased experienced a number of adverse consequences, such as the destruction of identity documents, loss of employment and health insurance, the impossibility of renewing identity documents or driving licences, difficulties in claiming pension rights, etc. Those who did not meet the conditions necessary to obtain a temporary residence permit were simply unable to overcome the legal vacuum caused by their irregular residency status and the consequences it had upon their lives. When attempting to arrange their status at the administrative units they faced innumerable formal and informal obstacles (see Lipovec Čebron and Zorn 2011). The situation in local courts was similar; between 1992 and 1999 the courts operated as a subsidiary of the state’s executive power. Even the Supreme Court, which accepted several complaints on behalf of the Erased, did not respond to the restrictive measures of the Ministry of the Interior but instead uncritically followed the laws which were clearly unfair (Kogovešek Šalamon 2011). The question arising in regard to this situation is why it was so difficult, even impossible, for the Erased to overcome the situation of absolute rightlessness (Arendt 1976) which rendered them superfluous and “out of place”.

The case of the Erased demonstrates that the legal residence given to an individual by a sovereign state on the basis of its sovereign right to decide who shall be admitted to its territory proves to be an important condition for full access to human rights. The status of (ir)regular foreigner remains as one of the most far-reaching “common-sense” inclusions/exclusions even when human rights are at stake. Kesby (2012: 108) notes that irregular or undocumented migration status is absent from the prohibited grounds of discrimination, which can be understood as a deliberate exclusion of irregular migrants from the position of the right-bearing subject. If a person does not hold permission to be in the territory of the state, the state is not deemed responsible for protecting and ensuring his or her rights. This is a stance which is clearly evident, for instance, in the International Covenant on Civil and Political Rights – that the obligation of the state is to respect and ensure rights to individuals who reside lawfully within its territory or are subject to its jurisdiction. The relation between the state’s responsibility to protect and the lawfulness of the individuals’ residence thus puts legal residence as the very source of a human rights claim, the source of the paramount of all human rights i.e. the “right to have rights” (Arendt 1976).

Legal residence in this sense is a crucial element in the practice of making and unmaking an individual a bearer of human rights. Many contemporary authors have been successful in exposing the complex relationships between states, sovereignty and human rights law (e.g. Arendt 1976; Kesby 2012; Agamben 2008; Ranciere 2004; Gündoğdu 2012, 2015; Vincent 2010) and have explained the difficulties arising from this as well as the consequences for the universal recognition of human rights. Although, as Gündoğdu (2015) notes, individuals within contemporary human rights law are not completely robbed of their legal personhood when ejected from the “the old trinity of state-people-territory,” – as notably believed by Arendt (1976) – they are nevertheless often deprived of their rights by the normalization of deportation of irregular foreigners, the illegalization of residency, or other forms of state population control. Kesby (2012) and Bosniak (2006) assert that the illegalization of residency constitutes internal borders so that even if a person may be physically present, they are to be socially and legally absent through the denial of key rights or formal and practical impediments.

As seen in the case of the Erased, legal residency provides a person with a legal personality, which is key to having the right to action and speech. Noted by Arendt (1976: 296) “the fundamental deprivation of human rights is manifested first and foremost in the deprivation of a place in the world which makes opinions significant and actions effective.” This is precisely what happened to the Erased – their lack of a legal residence permits in practice stripped away the significance of their arguments, which were considered void and worthless, having neither legitimacy nor importance. Hence the paradox, despite the fact that the human rights of the Erased were violated, they could not be recognized as victims of a violation as their claims were not considered legitimate. So it is that the construction of victimhood is inherently linked to the question regarding who has the right of a “speaking subject” (Foucault 1982)[2], and consequently to the concept of who is considered to be “in place” and who is “out of place” (Kesby 2012: 7). In other words, irregular residency constitutes a position of profound victimlessness, which can only be overcome by “gaining a voice” by the legalization of resident status. This means that a victim of human right violations can only be constituted in line with the rules of the recognition of the victim, as set out by sovereign nation states.

The exclusion of the Erased through the illegalization of their resident status points to the boundaries of humanity and human rights, which in this case overlap the boundaries of the state. Although human rights are often explained as moral entitlements people possess by virtue of common humanity, we can note here that having access to human rights is not linked to the question of being human. The idea of ​​humanity providing the right to have rights or the right of every individual to be a member of humanity is not provided by humanity itself. As the case of the Erased shows, the idea of humanity is beyond the current realm of international law, as the latter still operates on the basis of the decision-making of sovereign states (Arendt 2003: 379). The concept of universal all-encompassing humanity is thus under question as it is evident that humanity in reality is not sealed from the exclusionary practices which nation-states employ (Kesby 2012: 103).

It appears that the right of a nation-state to control the admission and residence of non-citizens rests above the humanity postulated in international human rights law. This works not only through border control and restricted access state territory but also through the construction of the illegality of persons who are territorially present, but nevertheless expelled from humanity (ibid). Having the right to stay in the territory of a country functions in this case as a vital entry point that endows the individual with “the right to have rights” and “the right to be heard” (Arendt 1976) and thus become the subject of human rights in a full sense. In the case of the Erased it can be seen that the principle of territorial sovereignty based on controlling the admission of foreigners to the territory of the state, justified as legitimate acts of sovereign statehood, ended up creating divisions within humanity itself.

 

 

Becoming a Right-Bearing Subject

In the two decades following the erasure, the Erased were represented in the media and especially in political discourse as disloyal and potentially dangerous; they were repeatedly represented as criminals, calculating and speculative individuals, national enemies and aggressors, even if there were no objective reasons for such a demonization, as they were mainly ordinary people living Slovenia. In the years following the erasure, journalists who wrote about the Erased in Mladina, a traditionally liberal weekly newspaper, were often confronted by questions from their editors, “Why do we need to write about this at all?”, “After all, they are the aggressors”, “Do you think this will increase the number of our copies?” (Mekina 2007). Devaluation and dehumanization excluded the Erased from political life, left them without the rights of a speaking subject and pushed them into a “bare life” (Agamben 1998) which additionally diminished the legitimacy of their human rights struggle.

Agamben (2008) recognized that the political order of the nation-state does not offer an autonomous space that would allow for the existence of a “mere” human; according to him, refugees or undocumented migrants can only gain full access to human rights either by deportation or naturalization i.e. inclusion into the polity of a state. Similarly, the claims of the Erased could only be recognized as legitimate by reintegration into the political community; it was 1999, seven years after the erasure, when the Constitutional Court established the unconstitutionality of Article 81 of the Aliens Act (CC 1999). This had a significant impact in that it provided legitimacy to the claims of the Erased, although only by including them into the national polity according to the rules of the nation-state – not as mere humans –could they enforce their human right claims. In its decision, the court ordered the government to resolve the inconsistency within a period of six months and demanded the abolition of unconstitutional conditions taking into account ‘the status that the Erased should have had but due to the improper legislation did not have’ (ibid).

As the court explained in its judgement, Article 81 of the Aliens Act was unconstitutional because it did not specify the conditions for obtaining a permanent residence permit after the expiration of the deadline for citizens of other republics of the former Yugoslavia. The Constitutional Court’s Decision had a decisive impact on transforming the Erased into rights-bearing subjects: (1) it revealed the actual extent of the erasure; (2) it created a potential core for developing a new subjectivity of the Erased as victims of human rights violations; (3) it formed a legitimate position from which the Erased could claim their rights; (4) it brought the issue to the political and parliamentarian agenda. The decision was the first document that clearly articulated the Erased from the perspective of constitutionality and also had a binding request to eliminate the injustice. What is more, it discontinued the silence and the political ignorance and in this respect succeeded in exceeding the impacts of the totalitarian elements of power previously shown in the Slovenian legal system (Kogovšek Šalamon 2011: 177).

Despite the ruling, the human rights struggle was far from over. Most politicians indeed emphasized their distance toward human rights violations, not only because these are generally against the law but also because this would most likely result in constructing their negative self-presentation. What they failed to do, however, was to adopt genuine human rights positions. What could be traced in the case of the Erased was that in general, politicians acted humanely and in a tolerant manner towards those among the Erased whom they perceived as victims of rights violations, but at the same time strongly defended the national interests indicating how conflicting ideologies of cosmopolitan humanitarianism and nationalism intertwine. The political debates that followed demonstrated the classical ‘firm, but fair’ position (van Dijk 1993), where the fairness served as a cosmopolitan disguise intended to avoid impressions or accusations of nationalism, whereas the firmness was the actual aim being pursued from their standpoint. Within the political setting of the human rights redress of the Erased, we were actually faced with simultaneous support toward human rights values, on the one hand, and the denial of human rights claims to a particular group within the Erased on the other hand.

In this respect, it is not important to establish whether individual politicians were xenophobic and intolerant toward the Erased, but to focus on the systematic flaws, elements in the processes, activities, and cognitions involved in the construction of victimhood. For instance, politicians applied various means to adjust the values of human rights, discredited the human rights holders and justified the crime of erasure with relativization. As highlighted by Jalušič (2008: 97), dealing with mass human rights violation involves several approaches and one of them, and also the most problematic one, is to explain the violent crime “through “contextualization” and their apologia – sometimes even in the form of an open justification of what has been done which can serve to legitimize further exclusion”. Indeed, there was an obvious attempt to represent the erasure as an administrative injustice which happened unintentionally during the state-building process, which also implied the reluctance of Slovenian political actors to determine objective or subjective responsibility for the violation of human rights.

Another way of dealing with mass violation of human rights, Jalušič notes (ibid), involves denial and silence about the criminal past and attempts to exculpate oneself using negative propaganda, powerlessness, and nationalist politicians as a pretext. As typified by Cohen (2007) in relation to other atrocities and human suffering, the case of the Erased likewise exhibited various states of denial such as outright denial (the erasure did not happen), discrediting (they were aggressors, criminals, and speculators), renaming (they were not erased but transferred from one register to another), and justification (they did not wish to reside in Slovenia anyhow). In this way, the politicians simultaneously denied the meaning of the erasure, claimed that it happened independently of their will and justified it in nationalistic terms. Politicians invented a particular discourse in relation to the Erased that was highly coded, full of references to political loyalty, territorial attachments, right and wrong, good and bad, and the responsibility to protect the state against its opponents.

The shift in recognition of the Erased as victims of a human rights violation has been to a large extent a result of the Constitutional Court’s decision from 1999 as well the critical approach of academics and legal experts, however, it turned out that the fundamental problem of the Erased was that the issue was being solved on the political and not the legal level. The political process of the recognition of the human rights violation following the constitutional court decision indeed demonstrated how much human rights are not just a matter of law, but are to a great extent dependent on the will found within a political setting where the battle to determine the final interpretation of human rights takes place. To grasp this troublesome development, we can examine the key milestones in the political process of human rights reconciliation.

In line with the constitutional court decision from 1999, the first political initiative to resolve the status of the Erased occurred the same year when the government filed the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia (the Status Regulation Act 1999). In 2000, the Constitutional Court ruled that this act was unconstitutional as it lay down stricter conditions for obtaining a permanent residence than those laid down in the Aliens Act of 1991 (CC 2000) in 2003, when it declared the unconstitutionality of the Status Regulation Act because it recognized the Erased’s residence only from the date of the re-application for residency and not from the date of erasure (CC 2003). The constitutional ruling returned the Erased to the parliamentary agenda debates in 2003 when the government attempted to pass two acts. One was adopted but later rejected in 2004 in a public referendum, while the legislative procedure of the other was suspended in 2004 due to a right-wing government. Under the rule of this government, i.e. from 2004 to 2008, all procedures for granting residence permits to the Erased on the basis of the decision of the Constitutional Court in 2003 was suspended. After the change of government in 2008, the Status Regulation Act from 1999 was finally amended and adopted in 2010. In 2012 the European Court of Human Rights (2012) delivered its final judgement in the case of Kurić and others vs. Republic of Slovenia. The Grand Chamber unanimously held that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human Rights and ordered the Slovenian government to set up an ad hoc domestic compensation scheme within one year of the final judgement. Following a six-month delay, the Slovenian government passed The Act on Restitution of Damage for Persons who were erased from the Register of Permanent Population (the Restitution Act 2013).

As evident from the brief sketch, becoming a rights-bearing subject may not be achieved immediately after the legitimacy of the rights claim is constituted in legal terms. It points to the fact that the violation of a right, even after it has been recognized by the court, does not provide an immediate solution to the problem. The whole process indicates that human rights are not simply a question of legal recognition, but more than that, a political decision of those in power to decide about whom human rights belong to and under which conditions. This brings us immediately to the question of victimhood construction along with an examination of who counts as a victim of a human rights violation and what constitutes the legitimacy of the human rights claim. As we shall see in the next section, the political setting and its approach to human rights violations may be deemed particularly ineffective, since it does not necessarily stem from human rights law and human dignity but builds upon a particular political interest justified outside human rights discourse.

 

 

Construction of Victimhood of the Human Rights Violation

The Constitutional Court as well as the European Court of Human Rights recognized the erasure per se as a human rights violation, essentially applying to all individuals affected. The Slovenian government, however, did not recognize every erased person as a victim. On the contrary, during the reconciliation process, members of parliament were constantly “sifting the wheat from the chaff” by establishing differences between the “true” and the “false” victims of the erasure. Their debates had been generally rather technical in the sense that they discussed what the precise rules were, the conditions and other measures which needed to be applied so that only the “most loyal” among the Erased could obtain a residence permit and essentially, to cut down the number of individuals eligible to claim compensation for suffering and loss of rights. At the same time, and what is especially worrying, the basic notions of human rights discourse such as human dignity and human equality as well as the inalienability and universality of the rights of the Erased were more or less absent from the process of victimhood construction. Instead the political construction of victimhood was intersected with references to political loyalty, legal compliance and territorial attachment.

Victimhood through Territorial Attachment

In the case of the Erased, territorial attachment turned out to be one of the prime features of the process of the victimhood construction. Article 1 of the Status Regulation Act determined that the Erased “who were registered as permanent residents in the territory of the Republic of Slovenia on 23 December 1990 and are actually resident in the Republic of Slovenia, and foreigners who were actually resident in the Republic of Slovenia on 25 June 1991 and have been living there continuously ever since, shall be issued with a permanent residence permit” (The Status Regulation Act, Article 1 2010).

The Act also stipulated that the condition of actual and uninterrupted residence was likewise met if the person left the Republic of Slovenia as a consequence of erasure from the Register of Permanent Residents and if the person left the Republic of Slovenia because he or she could not acquire a residence permit in the Republic of Slovenia owing to non-fulfilment of the relevant conditions and the application for a permit was rejected or dismissed or the procedure was terminated (The Status Regulation Act, Article 1č 2010).

Following this, an erased person who had left Slovenia and had not attempted to return did not meet the conditions for obtaining their lost permanent residence and consequently could not be counted as a victim of a human rights violation. Such a condition, entirely incompatible with the principle of universal human rights, created a differentiation within the victims of the erasure. The logic behind this is that the human rights of individuals who had emigrated from Slovenia after the erasure were not violated since they did not wish to live in Slovenia anyhow, which is evident from the following transcript:

Everybody who expressed some kind of interest to live in Slovenia in the period of ten years after they left Slovenia and those who regardless of the erasure remained living in Slovenia have the opportunity to arrange their status as permanent residents

[…] I believe the selection of rightful claimants has been thoughtfully determined. […] we have individualized our approach so that the eligibility of claimants depends on the fact that they have tried to arrange residential status, that is to say, they have expressed interest. Those who have not expressed any interest, those who have left Slovenia and have not attempted to return and to live in Slovenia, those have not suffered a loss and it would be absurd to give them financial compensation.

(Transcript of 17th parliamentary session, 24 September 2013)

Such an argument is not only inconsistent with the basic orientations of human rights law but also shows a lack of understanding and knowledge about the life situations of the Erased; a considerable part of those in question had not actually and uninterruptedly resided in Slovenia because in many cases, this was impossible owing to the erasure (Kogovšek Šalamon, 2007). From the view of the erasure itself, it is absolutely absurd to require from the Erased that they return and live in Slovenia as it was precisely because they were erased that they did not meet the conditions to do so. In other words, by this condition the government actually required them to do something against the law, i.e. to return to Slovenia illegally (Krivic 2013). By this measure the government denied the Erased who had left Slovenia their right to be heard before any action concerning the violation of their rights was taken. In this manner, they were stripped of the possibility to explain their individual circumstances as well as the reasons for leaving Slovenia as if the actual impact of the erasure on their lives was a priori irrelevant.

In the same way the compensation scheme, which was set by the government by adopting The Restitution Act in accordance with the final judgement of the Grand Chamber of European Court of Human Rights, admitted compensation exclusively to individuals who had put at least some effort into settling their status in Slovenia, or in the words of a member of parliament:

Speculators, meaning those who have left the country and never cared, never wished to come back to Slovenian territory, cannot just appear and demand some kind of compensation. This [the compensation] is meant for the people who made an effort, who endeavoured to arrange their statuses.

(Transcript of 17th parliamentary session, 24 September 2013)

On the basis of this argument approximately 13,000 of the erased individuals who had left Slovenia were not eligible to regain their status or be indemnified for the loss and damages inflicted upon them by the erasure. From the human rights point of view, however, whether an individual has lived in Slovenia, left, or attempted to return is of no significance. It does not change the fact that by erasing them from the register of permanent residence the state had robbed these people of their human rights. The members of parliament now tried to put forward an interpretation which translated as the rights of those who had left Slovenia was not really violated as they wanted to leave anyhow.

Such an explanation truly modifies and denies the real meaning of the erasure and consequently also modifies the meaning of human rights. The fact remains that the erasure inflicted a violation of human rights no matter if the Erased left Slovenia afterwards and had not attempted to return. But the case of the Erased demonstrates what happened after the violation of rights, that in this case, the individual place of residence has the ability to confirm or deny the violation itself. What one must understand in this regard is that territorial residence here does not merely operate as geographical location, but primarily as an objective signifier of belonging, attachment and membership that at the same time serves to indicate loyalty to the values of the Slovene nation state. For this reason, introducing the territorial dimension into victimhood construction, which appeared as a result of the power of the nationalist discourse, must be understood in the sense that the territorial identity of the Erased was also considered a way of expressing loyalty and defining group membership. In the last instance, this means that the victims of the erasure could only be the ones who proved to be those most loyal through territorial attachment.

Territory has another important political aspect from the view of human rights victimhood construction. As Elden (2013) convincingly proposes, territory cannot be understood as a part of a land in the simple political-economic sense of rights of use, appropriation, and possession attached to a place. Territory can be thought of as the extension of the state’s power or as a mechanism though which state power is exercised. The practice of human rights is clearly not particularly successful in diminishing the idea of the territory in regard to exercising state power. To be in the territory is to be subject to sovereignty and to be subject to sovereignty is to be recognized as entitled to human rights protection. One is subject to sovereignty while in the territory and not beyond (Elden 2013: 329). In other words, the state legitimizes itself as the supreme legal institution in charge of the protection of all inhabitants in its territory, regardless of their nationality, which gives rise to problematic distinctions between those in the territory and those who are outside it, even when it comes to the question of who is entitled to rights (Gündoğdu 2015: 43). In the same vein, Kesby (2012: 110) highlights that the territorial border is distinctive in that it eclipses the question of one’s humanity in that it bestows human rights obligations exclusively to those under its jurisdiction in a territorial sense, so that only those physically present in the territory trigger a state obligation to protect their human rights. The result is that the Erased who left Slovenia and never tried to return did not appear to the state as a ‘human’ to whom human rights obligations were owed, despite the fact that they were unlawfully erased from the Register of permanent residents and as a result of that erasure, their human rights were violated.

 

 

Victimhood through Deviancy and Imprisonment

Another problematic condition for settling the status of the Erased was the provision of the Status Regulation Acts determining that a residency permit could not be granted to anyone among the Erased who had been convicted of an offence resulting in imprisonment of at least three years or sentenced to more than one term of imprisonment with a total length of more than five years (Status Regulation Act, Article 3 2010). There is no official data regarding the numbers of the Erased who would be denied permanent residency on the basis of the above provisions, but it can be assumed that the number is very low or even zero. For this reason in particular it is thought-provoking that such a provision exists despite the fact that in reality there were not many cases, if any, to which they could have been referring. The restrictions on human rights protection on the ground of deviancy are indeed illustrative of the connotative content of the victim figure; my concern here, however, is also related to the role of international law in overcoming exclusions on the basis of deviancy.

What is most important is this regard is that international human rights law does not interfere with the right of the sovereign state to control the entry of aliens into its territory nor to set the rules of their residence and expulsion. The role of human rights law in this regard remains tenuous as it considers the matters of citizenship and the residence of foreigners to be within domestic jurisdictions insofar as they are consistent with international conventions and customary international law (Ersboll 2007: 253) i.e. as long as the state action is not arbitrary, discriminatory or has statelessness as a result. It has to be noted that the same reasons – imprisonment of three years or a total imprisonment length of more than five years – were listed in the Aliens Act from 1991 as the reason for possible renouncing permanent residence to a foreigner (Aliens Act, article 24 1991); from this aspect it cannot be claimed that the provisions related to the Erased are arbitrary or discriminatory.

The implicit message of the exclusion of prisoners from the victimhood construction of the Erased therefore is that they could lose their permanent residency in any case no matter if the violation of their human rights was recognized. That may be true, however, to deny erasure as a violation of human rights in the case of former prisoners actually means to deny the true meaning of the erasure – as an act of violation of human rights law per se. Such provisions namely make a statement that among the Erased, some do not deserve to be recognized as victims of a human rights violation and that their human dignity and equality may perhaps be disregarded when it comes to recognition of their right claims. The problem lies in that it is not the state that appears to be a “savage” who violated human rights, but the former prisoners who appear to be “savages” not worthy enough to have their rights fully respected.

We may turn to the question of why is it reasonable to restrict the human rights of prisoners, if these are the rights that everybody is supposed to be entitled to on the basis of being human, and why such discrimination against prisoners is not deemed discrimination but as a reasonable restriction? The main point of the criticism here is the automatic denial of human rights victimhood on the basis of deviancy alone. Recognition of human rights is not a privilege and also a convicted prisoner remains the bearer of human rights (Kesby 2012: 72). Within this relationship and these exclusions, we find a profound expression of the existing values of modern societies we come across when dealing with prisoners. Kesby (2012: 71) illustratively depicts prisoners as society’s outcasts, forcing us to reflect whether human rights are a privilege to be denied to those who are deviant and undeserving and thus not worthy of being placed inside a political community. Although everybody is considered a bearer of human rights which do not depend upon individual moral worthiness, the fact of being imprisoned, especially in the case of a grave offence, reveals “the “natural man” beneath, says Kebsy (2012: 78) by lifting the veil of formal equality stemming from humanity, the distinctions between deviant and law-abiding individuals come to the front.

The distinction between victims of human rights violations justified in terms of deviancy is used to define the preferred human rights bearers and to outcast those deemed unworthy. In the case of the Erased this can be seen as the arrogance of power over morality, especially from the point of view that it was the state which broke the law and violated human rights in the first place, and that the same state then denied the recognition of those human rights violations and once more acted against the idea of the universal human rights. The civilizing mission comes to the fore here, which strips away the full humanity and dignity of prisoners who are depicted as “savages” and defined as undesired, unwelcome, and dangerous and as such clearly impossible to be considered victims of human rights violations as they are themselves represented as the negation of humanity.

 

 

Victimhood through Political Loyalty

The case of the Erased revealed another significant element within the process of victimhood construction, i.e. political loyalty. The Status Regulation Act determined that the status of a permanent resident could not be returned to individuals who had been convicted of an offence directed against the Republic of Slovenia, irrespective of where the crime was committed (Status Regulation Act 2010). While loyalty does not appear to be in any way a factor of respecting human rights – as already explained human rights are not something that is either earned or can be lost – here it played a crucial role in the construction of victimhood in the case of the Erased. Although the provisions related to the actions against the sovereignty of Slovenia have no real significance in actual life, since no individuals were convicted of such criminal acts, the process of victimhood construction nevertheless shows what society generally understands as legitimate reasons for denying one’s human rights.

The Status Regulation Act namely denied access to permanent residency to an erased person if he or she was, “after 25 June 1991, convicted of an offence under the 15th or 16th chapter of the Criminal Code of SFRY, directed against the Republic of Slovenia […], irrespective of where the crime was committed; […] or convicted of an offence under the 33rd, 34th or 35th chapter of the Criminal Code of the Republic of Slovenia” (Status Regulation Act, 2010). The 33rd, 34th  and 35th chapters of the Criminal Code, include acts such as damage to commercial buildings, means of transport and equipment and public facilities in order to undermine the constitutional regime or security of the Republic of Slovenia; invasion of the territory of the Republic of Slovenia for infringement of its territorial integrity; collection of confidential military, economic or official information for foreign countries; failure to respond to the call to  fulfil defence duties when an emergency or state of war had been declared; careless handling of weapons, which can lead to damage or destruction; recruitment for foreign armies, etc. (Criminal Code 2008). I do not claim that the recognition of human rights has no restrictions whatsoever nor that freedom of action should not be limited by the human rights of other people, but what stems from the above list is that human rights are to be denied to those who have committed an act against the sovereignty of a particular state. The irony of this relationship is that human rights do not operate as a protection of the individual against the state but as protection of the state against the individuals.

The exclusion of the Erased as legitimate human rights bearers was thus targeted at those individuals who did not prove to be “loyal” residents, did not share “our” values and acted against the Republic of Slovenia. Moreover, denying human rights based on the above described arguments essentially means denying human rights on the basis of a person’s political opinion, especially in the context of the Yugoslavian break-up and related political confrontations. Such exclusion therefore casts doubt on the recognition of political opinion as a category within the prohibited grounds of discrimination, particularly if one’s political opinion opposes the sovereignty of a particular state. A contradiction of this kind can never be part of human rights and morality; denying human rights to political opponents does not contribute to greater respect for human rights, as Douzinas (2000: 141) says “in these circumstances, the righteous commit the crime they set out to prevent” i.e. they violate human rights in the name of preventing the human rights violation. But the approach applying the distinctions in regard to political loyalty of the Erased was, in fact, the only acceptable approach for parliamentarians. Recognition of all the Erased, including the “disloyal” ones, as victims of human rights violations would in their opinion mean high treason and betrayal of the Slovene national community as well as denial of the values of Slovene statehood and independence. The members of the parliament were essentially saying that:

The individuals, who suffered injustice due to the loss of resident status, these [injustices] will be abolished […] in a selective style and holds guarantees that those, who acted against the interests of the Republic of Slovenia in an unlawful mode and threaten the highest values, acknowledged by the civilized world, those will not be able to regain the status under provisions of this [Status Regulation] act.

 (Transcript of 30th parliamentary session, 28 October 2003)

We do not deny the right to enforce his or her rights deriving from Constitutional Court Decision, of course, selectively, in a manner, which will clearly examine what these people did in 1991, when the country bled/…/all of them who operated against the country, this [recognition of their rights] needs to be prevented.

 (Transcript of 2nd parliamentary session, 29 January 2009)

The discourse was evidently not merely ideological but messianic: ultimately, the exclusion of disloyal individuals from the victimhood of the erasure was a defence of the “civilized world”. Such exclusion may be one of the most “common sense” exclusions throughout the history of the modern nation-state; however, it is incompatible with the idea of human rights. By using such an approach, politicians acted against the universality and inalienability of human rights and the equality of the Erased. Instead, the legal provisions subordinated their just claims to the operation of the state, exemplifying the dominant logic of the state’s supremacy. Such conditions, useful in terms of distinguishing between loyal and disloyal individuals, point to the weakness of the idea of human rights, especially because they apply a selective approach where the recognition of human rights is subordinated to the logic of the state. Humanity as the basis for inalienable rights was replaced by a community of people loyal to the legal system and the sovereign power of the state. An analogy may be drawn from Kesby’s (2012) explanation in regard to disenfranchised prisoners that individuals may be denied rights because they have assaulted the special relationship of rights and duties which exist between a community and its citizens. This illustrates the dominant logic according to which the sovereignty of the state operates contrary to the universality of human rights, thereby showing that human rights, which are supposed to be the cornerstone of the rule of law, are actually protected only when a person proves to be a good citizen.

 

 

Conclusion

Human rights are thought to be the rights protecting individuals against the excess power of the modern nation state, obviously pointing to the fact that one of the problems in this regard is the nation-state itself. Yet, paradoxically, observes Vincent (2010: 106), if human rights are to be successful they require states to bring them into practice and enforce them. What can be noticed in relation to this is precisely that the dependency of human rights upon the state, i.e. that the implementation of human rights is so intensely intertwined within the state which provides the space and infrastructure for their implementation, that at times human rights operate through bypassing the considerations related to humanity, dignity and equality, turning to notions that have little to do with human rights, such as territorial attachment, political loyalty and compliance with legal order.

The case of the Erased proved the reason the State functions as a resilient argument for adjusting the values of international law, modifying the claims for legitimacy and altering the morality of human rights. By focusing less on the equality of individuals and more on the State as an end in its own right, politicians covertly implied that individuals matter only insofar that they prove to be somehow relevant for a reinforcement of state power. In this sense, the political discourse of victimhood construction manifestly contributed to the particularity of the state-centrism prevailing over human rights and confirmed the political logic of human rights discourses, which are often expressed in exclusionary practices that deny full participation to those who fail to support the interests of the dominant group (Evans 2005).

As shown at the beginning of the paper, the construction of victimhood is inherently linked to the question of a right-bearing subject and consequently to the conceptions of who is considered to be “in place” and who is “out of place” (Kesby 2012: 7). A nation-state constitutes a mode of exclusion manifesting through a differentiation between legal and irregular residents which is at the same time also an exclusion from the position of a legitimate human rights bearer. Irregular residency constitutes a position of complete victimlessness, which can only be overcome through legalization of resident status. It is equally important to note the contradiction between human rights recognition and practices of exclusions in the process of victimhood construction which are justified by diminishing the moral capacities of individuals who were subjected to a violation. Although human rights are not rights which are to be “deserved with proper behaviour”, the case of the Erased proves that this might be the case in practice.

Mutua (2001: 228-9) explains that the typical image of a victim in human rights discourse is founded on a helpless and innocent subject, abused by the state, its agents or pursuant to an offensive cultural or political practice. Distinguishing characteristics of the victim are powerlessness and inability to defend oneself against the state. The victims are usually represented as nameless, desperate and pitiful individuals, many of them poor and uneducated. This image corresponds with the part of the Erased who lived in Slovenia and tried to retrieve their permanent residence but were unsuccessful, who suffered due to their life without rights, who were violently separated from their families or who for many years hopelessly wished to return to Slovenia. In this manner victimhood could not be recognized to anyone who proved to be convicted, imprisoned or who had been deemed politically disloyal or who had acted against the sovereignty of the Republic of Slovenia, as such a person could not be acknowledged as a helpless suffering subject but instead seen as an immoral individual. From this aspect, it turns out that the construction of victimhood in the case of the Erased ironically demonstrates not the protection of the individual against the state but the protection of the state against the individuals.

The idea of the nation-state overruled the idea of universal human rights which was evident in the fact that members of parliament adopted legislation that stipulated criteria for selectively admitting violations of international law. The problematic provisions of the Status Regulation Act and The Restitution Act set the criteria for dividing legitimate and illegitimate victims of the erasure and thus lost the opportunity to develop a genuine discourse on human rights by introducing the dichotomy between the “real” and “false” victims of the erasure. The construction of the victim in the case of the Erased did not stem from the basis of human nature or the dignity human equality. As seen, the victimhood evolved around the notions linked to the relationship between the individual and the state, especially to a person’s obedience to the state’s legal and political order, avoidance of deviancy, loyalty and territorial attachment.

This whole process of victimhood construction demonstrates how parameters which are in fact antagonistic to the idea of human rights play an important role in the implementation and interpretation of the right on a micro-level. Local concerns shaped and determined the ways in which universal rights were implemented, resisted and transformed, while the specificities of particular struggles demonstrated the tangible limitations of the global human rights law in a local context. The discrepancies between universality of human rights and the selectivity of the nationalist state-centric logic revealed the fact that even if everybody should enjoy the same human rights, the case of the Erased demonstrates that in contemporary societies, particular groups or individuals are viewed as victims only with great difficulty. Even those parliamentarians who argued for protection of the human rights of the Erased did not recognize the difficulties and inconsistencies that the selective approach brings in terms of the principle of universality. What is particularly intriguing is that such an implementation of human rights does not undermine the concept of those rights itself but transforms their interpretation by introducing the values of state sovereignty into the human rights idea.

Such a mode is problematic as it employs the power of the state-centric discourse to modify the meaning of human rights according to its own values; it turns and transforms the ‘universal’ into the ‘particular’, without denying the universality of human rights so that in the end, the final impression is that justice has been done and human rights have been fully respected. This approach, hidden behind the mask of human rights as a discourse that follows the norms and values of human rights law, leaves little or no space for an effective political human rights struggle. The conclusion then brings us to the question whether the victims of the erasure in fact reclaimed their human rights – as they actually were given rights which could not be justified on the basis of their humanity, equality and dignity. In this sense Arendt (1979: 293) appears to be particularly illuminative in her thought-provoking statement that “although everyone seems to agree that the plight of these people consists precisely in their loss of the Rights of Man, no one seems to know which rights they lost when they lost these human rights.”

 

References

Act on Restitution of Damage for Persons who were erased from the Register of Permanent Population (the Restitution Act). 2013. Official Gazette RS No.99/2013. 29 November 2013, Ljubljana. https://www.uradni-list.si/glasilo-uradni-list-rs/vsebina/2013-01-3547/zakon-o-povracilu-skode-osebam-ki-so-bile-izbrisane-iz-registra-stalnega-prebivalstva-zpsoirsp

Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia. (the Status Regulation Act) 2010. Official Gazette RS No.76/2010. 22 September 2010, Ljubljana. www.uradni-list.si/1/objava.jsp?sop=2010-01-4131

Agamben, Giorgio. 2008. »Beyond Human Rights«. V: Open 15: Social Engineering. SKOR 2008/ No. 15. Can Society Be Engineered In the 21st Century?, 90–95. Rotterdam: nai010 publishers.

Arendt, Hannah. 1976. Origins of Totalitarianism, Cleveland and New York:  Meridian Books.

Bosniak, Linda. 2006. The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton: Princeton University Press.

Carozza, Paolo G. 2013. »Human dignity«. V: The Oxford Handbook of International Human Rights Law, ur. Dinah Shelton, 345–359. Oxford: Oxford University Press.

Citizenship Act of Republic of Slovenia. 1991. Official Gazette RS No. 1/91-I, June 25th. www.uradni-list.si/glasilo-uradni-list-rs/vsebina/1991-01-0008?sop=1991-01-0008

Clifford, Jarlath. 2013. »Equality«. V: The Oxford Handbook of International Human Rights Law, ur. Dinah Shelton, 420–445. Oxford: Oxford University Press.

Cohen, Stanley. 2007. States of Denial: Knowing about Atrocities and Suffering. Cambridge: Polity in Malden: Blackwell Publishers

Constitutional Court. 1999. Constitutional Court Decision No. U-I-284/94. Ljubljana. http://odlocitve.us-rs.si/sl/odlocitev/US19309

Constitutional Court. 2000. Constitutional Court Decision No. U-I-295/99. Ljubljana. http://odlocitve.us-rs.si/sl/odlocitev/US20132

Constitutional Court. 2003. Constitutional Court Decision No. U-I-246/02. Ljubljana. http://odlocitve.us-rs.si/sl/odlocitev/US22240

Cowan, Jane K., Marie-Bénédicte Dembour in Richard A. Wilson, ur. 2001. Culture and Rights: Anthropological Perspectives. Cambridge: Cambridge University Press.

Criminal Code. 2008. Official Gazette No 55/2008. 28 May 2008, Ljubljana. https://www.uradni-list.si/glasilo-uradni-list-rs/vsebina/2008-01-2296/kazenski-zakonik-kz-1

Donnelly, Jack. 2003. Universal Human Rights in Theory and Practice. Ithaca in London: Cornell University Press.

Douzinas, Costas. 2000. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford in Portland (Oregon): Hart Publishing.

EHCR. 2012. The case of Kurić and others vs Republic of Slovenia. Strasbourg. http://hudoc.echr.coe.int/eng#{“fulltext”:[“Kurić”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-111634”]}

Elden, Stuart. 2013. The Birth of Territory. Chicago in London: Chicago University Press.

Engle Merry, Sally. 2006. Human Rights and Gender Violence: Translating Transnational Law into Local Justice. Chicago in London: The University of Chicago Press.

Engle Merry, Sally. 2009. »Legal Transplants and Cultural Translation: Making Human Rights in the Vernacular«. V: Human Rights: An Anthropological Reader, ur. Mark Goodale, 265–301 Malden (MA): Wiley-Blackwell.

Ersbøll, Eva. 2007. »The Right to a Nationality and the European Convention on Human Right«. V: Book cover Human Rights in Turmoil: Facing Threats, Consolidating Achievements, ur. Stephanie Lagoutte, Hans-Otto Sano in Peter Scharff Smith, 249–270. Leiden in Boston: Martinus Nijhoff Publisher.

Evans, Tony. 2005. The Politics of Human Rights: A Global Perspective. London: Pluto Press.

Foucault, Michel. 2002. Power. London: Penguin.

Geertz, Clifford.  1983. Local Knowledge: Further Essays in Interpretive Anthropology. New York,. NY: Basic Books.

Goodale, Mark. 2006. »Toward a Critical Anthropology of Human Rights«. Current Anthropology, 47 (3): 485–511.

Goodale, Mark. 2007. »Introduction: Locating Rights, Envisioning Law Between the Global and the Local«. V: The Practice of Human Rights: Tracking Law Between the Global and the Local, ur. Mark Goodale in Sally Engle Merry, 1–38. Cambridge: Cambridge University Press.

Goodale, Mark. 2009. »Toward a Critical Anthropology of Human Rights«. V: Human Rights: An Anthropological Reader ur. Mark Goodale, 1–19. Chichester in Malden: Wiley-Blackwell.

Gündoğdu, Ayten. 2012. »Potentialities of Human Rights: Agamben and the Narrative of Fated Necessity«. Contemporary Political Theory, 11 (l): 2–22.

Gündoğdu, Ayten. 2015. Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants. Oxford: oxford University Press.

Jalušič, Vlasta. 2007. “Renouncing the Political Capacities: Organized Innocence and Erasure of Citizenship Responsibility in Post-Yugoslav Nation-state Building.” Journal for the Critique of Science, 35(226): 95–114.

Kateb, George. 2011. Human Dignity. Cambridge (Mass.) in London: The Belknap Press of Harvard University Press.

Kesby, Alison. 2012. The Right to Have Right: Citizenship, Humanity, and International Law. Oxford: Oxford University Press.

Kogovšek Šalamon, Neža. 2007. “The Erasure: The Proposal of a Constitutional Law as the Negation of the Rule of Law.” Journal for the Critique of Science, 35(226): 196–220.

Kogovšek Šalamon, Neža. 2011. “Pravni vidiki izbrisa iz registra stalnega prebivalstva.” [Legal Aspects of Erasure from the Register of Permanent Residents]. Ph.D. dissertation, Univerza v Ljubljani.

Kretzmer, David and Eckart Klein, ur. 2002. The Concept of Human Dignity in Human Rights Discourse. The Hague in London: Kluwer Law International.

Krivic, M. 2013. Comment on the Restitution Act. http.//www.dz-rs.si (Accessed 1 December 2013)

Lipovec Čebron, Uršula and Jelka Zorn. 2011. Zgodbe Izbrisanih Prebivalcev [The Life-Stories of the Erased Residents]. Ljubljana: Založba Sanje.

Mekina, Igor. 2007. “The Erasure of the Erasure.” Journal for the Critique of Science, 35(226): 174–189.

Ministry of Internal Affairs. 1992a. Official Communication: Implementation of the Aliens Act—Instructions. Ljubljana. www.mirovni-institut.si/izbrisani/wp-content/uploads/2012/02/depesa_05_1992_02_27.pdf

Ministry of Internal Affairs. 1992b. Official Communication: Open Questions in regard to Aliens Act Implementation. Ljubljana. www.mirovni-institut.si/izbrisani/wp-content/uploads/2012/02/depesa_06_1992_06_04.pdf

Moeckli, Daniel. 2014. »Equality and non-discrimination«. V: International Human Rights Law, ur. Daniel Moeckli, Sangeeta Shah in Sandesh Sivakumaran, 157–173. New York: Oxford University Press.

Mutua, Makau W. 2001. »Savages, Victims, and Saviors: The Metaphor of Human Rights«. Harvard International Law Journal, 42 (1): 2019–245.

Osiatyński, Wiktor. 2009. Human Rights and Their Limits. Cambridge in New York: Cambridge University Press.

Rancière, Jacques. 2004. »Who Is the Subject of the Rights of Man?«. The South Atlantic Quarterly, 103 (2/3): 297–310.

Riles, Annelise. 2006. »Anthropology, Human Rights, and Legal Knowledge: Culture in the Iron Cage«. American Anthropologist, 108 (1): 52–65.

Rodley, Nigel S. 2014. »Integrity of the person«. V: International Human Rights Law, ur. Daniel Moeckli, Sangeeta Shah in Sandesh Sivakumaran, 174–195. New York: Oxford University Press.

Speed, Shannon. 2006. »At the Crossroads of Human Rights and Anthropology: Toward a Critically Engaged Activist Research«. American Anthropologist, 108 (1): 66–76.

Speed, Shannon. 2009. »Gendered Intersections: Collective and Individual Rights in Indigenous Women’s Experience«. V: Human Rights: An Anthropological Reader, ur. Mark Goodale, 229–245. Malden (Mass.): Wiley-Blackwell.

Teun A. Van Dijk, Elite Discourse and Racism (1993).

The Aliens Act. 1991. Official Gazzete RS No 1/1991. 5 June 1991, Ljubljana.  Http://www.uradni-list.si/1/objava.jsp?urlid=19911&stevilka=9.

Transcript of 19th Session of the Socio-political Chamber, 3rd June. 1991 https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=0&type=sz&uid=236CE1425EF8B79DC1257C01003FD28D

Transcript of 30th parliamentary session, 28 October. 2003. Http://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=III&type=sz&uid=1CBDB2DB111B8DE9C1256DD500387EE6 .

Transcript of 2nd parliamentary session, 29 January. 2009. Https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=V&type=sz&uid=F52C99CDF6B6BC1FC125755B003D6FF3.

Transcript of 17th parliamentary session, 24 September. 2013. Https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=VI&type=sz&uid=01F9F3D8497AFE00C1257C4600535D16.

Vincent, Andrew. 2010. The Politics of Human Rights. Oxford: Oxford University Press.

Zorn, Jelka. 2009. “A Case for Slovene Nationalism: Initial Citizenship Rules and the Erasure.” Nations and Nationalism, 15(2): 280–298.

Žižek, Slavoj. 2005. »Against Human Rights«. New Left Review 34, July–August: 115–131.

 

 

Endnotes


1 This provision was applicable to citizens of other Yugoslav republics (Serbs, Croatians, Macedonians, Bosnians, and Montenegrins) who held permanent residency in Slovenia on 23rd December 1990 i.e. the Plebiscite Day, when the people voted for an independent state.

2 Foucault (1982: 52) says in his lecture that “in society like ours, the procedure of exclusion are well known. […] We know quite well that we do not have the right to say everything, that we cannot speak of just anything in any circumstances whatever, and tht not everyone has the right to speak of anything whatever.

Humanity and Human Rights: The Contours of International Law

There are compelling reasons for being content in living at a time when the basic requirements of humanity and human rights have been recognized by the ratification of most of the international human rights and international humanitarian law instruments. Clearly, the existence of disparity between the recognized norms and the actual behavior of states cannot be denied. There are also states that are not willing to subscribe to what is widely accepted or political actors that have interests in reversing the gains made this far. Despite all this, no one can doubt that a mile-stone has been reached in recognizing the values of humanity and human rights. The credit for this goes to those that have struggled for these goals, including through their writings and struggles and the conducive, post-World War II political atmosphere which stimulated the inter-state agreements.

Giving credit to the role played by the past thinkers does not necessarily mean that there is no longer any need for intellectual debate relating to this matter. If the requirements of human rights and humanity are to be critically appraised, it will be necessary to examine closely the thoughts of scholars, past and present, on this subject. Then and only then will we be able to fully recognize the inter-play between humanity and human rights as perceived in the past and present and to appreciate the direction international law has taken or should take.

This article sheds light on the path which international law took in responding to the requirement of human rights and humanitarianism (as dictated by humanity). This is done by reflecting on international human rights law and international humanitarian law. If these laws were developed to protect the dignity and worth of the human being, as is claimed, why make a distinction between them? Are there areas of convergence between them?  Before attempting to respond to these and other questions it will be necessary to clarify not only what is understood by human rights and humanity, but also who the human being is in the first place.

Human being, humanity and human rights – conceptual issues

Human being: Dictionaries define ‘human being’ typically as a member of the Homo sapiens species that is “distinguished from other animals by superior mental development, power of articulate speech and upright stance.”[1] Since there are species in the animal kingdom with a capacity to reason and communicate, it important to look for other distinguishing attributes which merit protecting our unique qualities, values, rights, freedoms. Are we social? Are dignity, empathy, sensibilities and sympathy for our fellow beings part of our nature? If not, what do people mean when they say ‘this person lacks humanity’? While there is no problem in identifying the human being by the looks, appreciating our nature has always been a matter of controversy.

Thomas Hobbes, for instance, believed that the human being was not social, e.g., like ants or bees, or a peaceful and compassionate being. Rather, he took him/her as individualistic, competitive, envious, hateful and belligerent. The mere fact that human beings were equipped with the power of reasoning led Hobbes into believing that this quality leads them to think that they are wiser than others and to use it for manipulation and hurting one another. According to him, this nature and inclinations is responsible for the perpetual state of conflict in which we find ourselves in, a situation which Hobbes described as ‘war of all against all’. This was why he called for the surrendering of ‘natural rights’ in favor of tyrannical rule based on social contract.[2]

Immanuel Kant dismissed this negative description of the human nature since it ignored our obvious social nature and our many positive inclinations and attributes which enabled us to evolve by forming stable communities. As Kant saw it, the human being is a rational and moral being, one who complies with duties, whether based on the needs of complying with external laws or self-constraint which limits the freedoms of action using “practical reason, (i.e., according to humanity in his own person)”.[3] This uniqueness entitles the human being to exercise their ‘natural’ rights and freedoms based on the recognition of “the dignity of humanity in every other man.”[4]

If humans are a self-consumed evil species constantly at war with one another, as Hobbes claimed, then humanity cannot exist or cannot be anything more than a mere collection of hostile human beings inhabiting the world. If, on the other hand, we are rational moral beings, as Kant believed, then our shared rationality, morality and sense of solidarity should make us feel as ‘one’, very much like members of ‘a family’.

Humanity is defined in Dictionary.com in at least three different ways: i. “all human beings collectively; the human race; humankind”, ii. “(T)he quality or condition of being human; human nature” and, iii. “(T)he quality of being humane; kindness; benevolence.”[5] The first definition avoids specifying the essential elements in humanity by merely considering it as the equivalent to human beings, collectively. We see this approach taken in some international instruments, e.g., in article 1 of the 1966 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which considers outer space as “the province of all mankind”, or article 1 of UN General Assembly resolution 43/53 of 1988 which regards climate change as “a common concern of mankind”. The second definition also side-tracks what humanity is by merely pointing out the root word it came from – i.e., from human.

More specific and giving is the third definition which refers to kindness, benevolence, and being humane as examples of the virtues of humanity. David Hume elaborates further by adding more virtues, including “generosity, gratitude, moderation, tenderness, friendship”.[6] According to him, these “are not only the same in all human creatures, and produce the same approbation or censure; but they also comprehend all human creatures”.[7] Why the receivers get such gestures is not hard to understand, since this is explainable by the simple fact that there must have been a need for it, irrespective of whether that need has arisen from situations or incidents caused by the forces of nature, by others, by accident or by the fault of the receivers. More interesting is what motivates or compels the givers to share the pains or problems of the receivers in that predicament. It makes one wonder whether one can feel or suffer from the conditions or problems faced by others, and if so why and how? Michel Ager answered this question in the following manner:

“Like the god Janus, humanity has a double-sided identity, which, however, does not express any alterity (no “other” is allowed in this bounded and total representation). Its double is only the reflection of a wounded, suffering, or dying humanity. It becomes the “absolute victim,” who is nothing else or other than absolute and essentialized humanity when it is suffering. This figure of humanity, both unique and split—absolute humanity vs. absolute victim—dominates contemporary thought: the representation of a world generally treated as a totality, with no representation of difference, is the foundation of our present as a humanitarian age, a world of nameless victims whose identities do not differ from the common humanity…” [8]

To say that sensibilities, generosity, gratitude, empathy and tenderness are examples of the virtues of humanity, does not necessarily mean that human beings cannot display the opposite characteristics such as to be evil, cruel, insensitive and inhuman. If this is the case, how can we still say that there is humanity? The defendants of humanity seek to resolve this dilemma by underscoring the point that who we are by nature should not be confused by how we sometimes behave in defiance of our nature. Christian theologians, for instance, explain this puzzle by reference to the Bible (Genesis 1:26-28) which considers us as created in the image of God, who is merciful, considerate and good. However, in reality we choose to commit sins (or because of the sins which we inherit) and behave in evil ways. Charles Sherlock explained this in his book on The Doctrine of Humanity: Contours of Christian Theology in this way:

“Whatever theory of the transmission of sin and its origin we hold, the reality is that everyone who reads this book is a sinner. Each of us needs constantly to turn to Christ, admit our need for forgiveness and healing, renounce sin and evil, and so live gladly the life which the Holy Spirit brings in us. Only in that way can the old humanity be killed off, and the fruits of the Spirit flourish (cf. Col. 3:1-17). Our prime concern is not with the transmission of sin, but (with) the humanity in Christ.”[9]

Most Liberals, libertarians and primordialists are at odds with the emphasis that is placed on the selective positive inclinations of human beings used to validate or glamorize the existence of humanity. Libertarians, such as Ayn Rand, have no problem with selfishness. What they regard strange is selflessness, altruism and sacrificing for others. ”Altruism holds death as its ultimate goal and standard of value”, wrote Rand in her publication entitled The Virtue of Selfishness, “and it is logical that renunciation, resignation, self-denial, and every other form of suffering, including self-destruction, are the virtues it advocates.”[10] According to her, “if civilization is to survive, it is the altruistic morality that men have to reject.”[11]

Richard Rorty, a liberal American professor, questioned the arguments used by Immanuel Kant in defense of humanity and human rights based on morality and rationality because people choose frequently to act in irrational and immoral ways to protect their interests. He provides numerous examples of this, such as how the Nazis tried to exterminate Jews in the 1930s, how Moslems were treated by Serbs during the Balkan wars, how most men see women and why “(F)or most white people, until very recently, most black people did not so count”[12] According to Rorty, these are all examples that show that people do not always want to see others, outside their own groups, as humans, let alone to feel their pains or share their sufferings. This was not always because of ignorance or misunderstanding but the determination to treat them in that way or as sub-human. As he put it:

“Resentful young Nazi toughs ere quite aware that many Jews were clever and learned, but this only added to the pleasure they took in beating such Jews. … For everything turns on who counts as a fellow human being, as a rational agent in the only relevant sense – the sense in which rational agency is synonymous with membership in our moral community.[13]

Primordialists reason in similar ways in dismissing the existence of humanity, as a concept that embraces all human beings, by attaching heavy weight to membership in ethnicity. As they see it, members of ethnic groups reject those outside their own groups, because of competition, fear of the unknown or past conflicts.[14] Loyalty to one’s own group itself hinders the development of broader feelings of solidarity, sensibilities and generosity which are generated by humanity. That we are social is not, strictly speaking, in doubt, since one cannot imagine ethnic conflict without ethnic bonds and loyalty. If this is the case, one can wonder why members of one ethnic group migrate to places inhabited by other ethnic groups or to foreign countries. Why do families from one ethnic group adopt children from other groups? Why do millions of students study abroad or tourists spend so much money to see and enjoy alien cultural places?

Liberals and libertarians are more consistent in their approach when belittling humanity because for them groups do not exist. What matters for them is the individual. Our social attributes and interests are neglected for the sake of maximizing individual rights and freedoms. But the question remains that the individual cannot develop intellectually, emotionally and socially outside social interaction and enrichment. How else did we end up using a common language, culture or professing a common religion? If groups do not exist, why do states invoke ‘public’ morality or security to restrict individual rights or freedoms, and why are families given the power to choose the schools for their children? Why is solitary confinement used as a means of punishment? Why are we attracted to foreign cultures and values? Simply walking on a street in a foreign country and seeing a stranger fall, bleed or cry can arouse feelings within us of sympathy or concern as if our own life was endangered. What one stranger does on the street or TV can make us laugh, weep, stimulated or depressed simply because we are social.

If we were not social, we would not see so many people and organizations dedicating their time, energy, resources and services to help ‘others’, out of love, compassion and altruistic motives. For most of these people and humanitarian groups even the age, gender, race, ethnicity, nationality or ideological orientation of the receivers do not matter. Nor do they care whether the cause they are responding to is natural calamities (earthquakes, floods, drought, hurricanes, etc.), or man-made problems (conflicts, internal displacement or refugee exodus) or the fault of the receivers. The generosity is extended out of “a vision of humanity as unique”.[15]

The presence of special bonds between human beings is now recognized in important international instruments and by international institutions. The Rome Statute of the International Criminal Court, for instance, justified the needs for the establishment of this Court by underscoring the point “that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … (the presence of fear) that this delicate mosaic may be shattered at any time”.[16] UNESCO justifies the protection of the ‘common heritage of mankind’ by designating historically significant cultural heritages (e.g., ancient monuments, pyramids, ruins and architectural complexes) as  belonging to all of us although we have not seen them or will ever see them or have a clear knowledge of  how we were shaped by them.

Rights. When used as an adjective the word right means correct, just, righteous, true, fair, etc.), If it is used as a noun, it can describe entitlement, privilege, title, guarantee, power, autonomy, freedom or benefits. The right-holder can be a human being, a legal person (corporation, labour union, religious or cultural entity, etc.), a political ruler (a king or a president), an institution (e.g., a parliament or a supreme court), or even animals. Human rights are only some of the rights that are recognized and enforced in the political world. Some of these rights may even be inhumane or inhuman. There were legal rights that were enforced for centuries, permitting people to purchase, sell, inherit and exploit fellow beings as slaves. Even today, we find countries who use laws entitling a grown-up man to marry a child or several minor girls, or to benefit from the misery of desperate prostitutes or trafficked migrant workers. However, morally bankrupt such legal rights might be, they remain to be valid in the countries that recognize them by law to regulate social relations, order and stability

Human rights simply state that humans have rights as if the source of the right is “humanity, human nature, being a person or human being’.[17] The discourse on human rights has complex, controversial and ideologically charged sides.[18] Why people have aspired or struggled for rights and freedoms in the past or present is not difficult to understand, since this is linked to what has prevented them from enjoying the desired rights and freedoms: e.g., to end oppression and discrimination. People do not struggle for no apparent reason. This is why “human rights do not define a unitary, universal human condition but designate rather a field of heterogeneous practices that help to constitute the array of subject moments or subject effects that comprise citizens and sovereigns.”[19] It is no wonder, therefore, that the narratives of human rights have changed over the years and why we find them framed differently during the French Revolution, the American Civil War, the post-World War II or in the Cold War periods.[20] Whichever way rights might have been framed in the minds of scholars or those who struggled for their rights, in the real political world they have always been political. It is no wonder, therefore, that even after the popular political struggles have emerged victorious, what was achieved were sometimes later denied or diluted by subsequent political actors. A case in point are the British Magna Carta, the U.S. Bill of Rights and the French Declaration of the Rights of Man and the Citizen.

In 1215, the rebellious English barons secured from their autocratic, King John, concessions acknowledging rights for the ’free men’ of his realm. These included the right not to be arbitrarily “seized or stripped of his rights or possessions, or outlawed or exiled” and not to be denied justice (clause 63). These rights and protections were not extended to the majority of “unfree peasants known as ‘villains’, who could seek justice only through the courts of their own lords.”[21] The pledges that were given were disregarded by subsequent kings who repealed most of the clauses contained in this Great Charter, making the struggle for rights open-ended.

The 1776 American Revolution was justified to put an end to the oppressive and tyrannical rule of the British King and to affirm the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and that governments should derive “their just powers from the consent of the governed.”[22] Shortly thereafter a Bill of Rights was adopted in 1791 to put this vision into practice, by guaranteeing the rights to the freedom of speech, assembly, religion, privacy, fair and speedy trial, to petition the government and the protection from ‘cruel and unusual punishment’. However, these ‘unalienable’, God-given rights were not interpreted as being applicable, at the time, to women or blacks or the indigenous populations. They were politically framed rights that were secured for the white men, whose rights to privacy included owning blacks – for nearly one more century. Both George Washington and Thomas Jefferson owned slaves. Even after the institution of slavery was legally abolished in 1865, blacks (and American Indians) continued to be excluded from political participation until their uprising in the 1960s.

The much-celebrated 1789 French Declaration of the Rights of Man and of the Citizen too was really not intended to make all human beings the holders of full rights, although its title suggests that non-citizens also have right. As Susan Maslan noted:

“The inclusion of man, as opposed to, say, Frenchman, as a subject of rights within the Declaration is what distinguishes it so radically from the American Bill of Rights, a document that makes no claim to apply beyond the confines of its national authority. It is a wonderful sort of irony, one that demands serious reflection, that the invention of the Rights of Man played and continues to play such a predominant role in the creation and perpetuation of French national identity.”[23]

This Declaration affirms the principle of equality and the “natural and imprescriptible rights of man”. But the beneficiary remained to be the politically situated French man.[24] French women (the ‘passive citizens’) continued to be excluded from political participation, and the problem of slavery in the French colonies was left out. This was why the betrayed slaves started to rebel. French women too protested, which was why the Declaration of the Rights of Women and the Female Citizens which was published in 1791, and still fell on deaf ears.

The international regime of human rights considers human rights as being applicable to all human beings without distinction. As stated by the Office of the United Nations High Commissioner for Human Rights:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.… Universal human rights are often expressed and guaranteed by law, in the forms of treaties…and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[25]

This fits Donnelly’s definition which makes human rights applicable to everyone ”simply because one is a human being.”[26] It makes the language of human rights, if not human rights themselves, (essentially)… universal” because the members of the international community claim to respect its core value: i.e., human dignity.[27]

The contours of international humanitarian law: evolution and features

Humanitarian values and rules were developed out of the awareness of our social nature and the determination to protect values of broader concerns based on our sensibility and feeling of solidarity. There are two movements of interest to mention, both aiming at alleviating human suffering, broadly speaking. They are the anti-slavery movement and the campaigns used to mobilize support for ending the cruel manner of conducting wars.

In her illuminating essay entitled “Humanity without Feathers”, Lynn Festa, highlights the background of the movement which led to the abolishment of slavery in Britain. The force behind this movement, she notes, was the sympathy and sensibility of people in England had to the sufferings of black slaves in the distant English colonies. “Inasmuch as sympathy involves experiencing another’s feelings (that is, feelings that are by definition not one’s own),” she wrote, “it breaks down the division of self and other”.[28] This scenario shows how the ’free’ white European come to the rescue of the enslaved African at the cost of the economic interests of the English slave master. The pains which the abolitionist felt appears to be personalized in that the black victims were ”marginalized by the fact that it is not the slave but the personification of ’humanity’ that bleeds and longs to vindicate her rights”.[29] Obviously, sentiments were not the only ’playbook’ used by the abolitionist, the writer notes, as ”calls for sympathetic feeling— then as now—were tempered and supplemented by appeals to reason, to policy, to interest, to principle, to faith.”[30] In his celebrated publication entitled The Social Contact Rousseau describes the ironies of slavery by noting that “(M)an is born free, and everywhere he is in chains. One man thinks himself the master of others, but remains more of a slave than they are.”[31]

The other example mentioned above to explain the movement defending humanity is that which led to the prohibition of the savage ways of conducting warfare. Some of the champions of this cause were not soldiers or people who lost loved ones in battle fields or those whose personal safety was directly or indirectly affected by wars. As in the case of the anti-slavery activists, their campaign was to rescue the victims whom they did not know personally and wherever they were. There was no question that those who were behind the development of rules prohibiting these kinds of cruelties shared the agonies of the victims as if they themselves had been victimized.

Perhaps the most famous scholar who laid the foundation for the emergence of humanitarian law was Hugo Grotius (1583–1645). Like other writers before him (such as Francisco de Vitoria and Alberico Gentili), Grotius was concerned about the dignity of human beings and about how wars were conducted. He was especially puzzled and annoyed by why “men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes”.[32] According to him, the kinds of cruel and inhumane behaviour that revealed itself during his time, when the Thirty-Years religious wars were raging, were irreconcilable with Natural Law. He took this law as valid because it was based on morality (rationality). It was natural because it was universally applicable to all human beings. His writings identified elaborate rules of conducts that should be followed by all states at all times, in connection with conflicts.

The efforts made by Grotius to mobilize wider support through his writings and travelling to different countries, inspired many others, like him, to be engaged in humanitarian work. Among these was Henry Dunant, who was awarded the first Nobel Prize, and the establishment of The Red Cross in 1863. In 1899 and 1907 two important international conferences were held in The Hague (Holland) on the conduct of warfare. These paved the way for the conclusion of the first and second conventions. The horrors of the First World War led states to appreciate the importance of broadening the scope of the existing humanitarian instruments, by adding the 1925 Geneva Protocol to these Hague prohibiting the use of certain weapons.

The establishment of the United Nations in 1945 speeded up the legal evolution of international humanitarian law. The UN Charter expressed concern over the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (preamble para. 1), and considered the achievement of “international co-operation in solving international problems of “… humanitarian character, and … respect for human rights” (art. 1(3) as one of the purposes of this organization. The pursuit of these goals and the mandates given to its General Assembly to promote “the progressive development of international law and its codification” (art. 13) gradually led to the adoption and ratification of numerous conventions transforming humanitarian law qualitatively. Examples of these include the 1948 convention on the prevention and punishment of the crime of genocide, the four Geneva Conventions of 1949, the 1951 Refugee Convention, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1968 treaty on non-proliferation of nuclear weapons, the 1972 Biological Weapons Convention, the 1980 Convention on the use of certain weapons causing excessive injuries, the 1993 Chemical Weapons Convention, the 1997 Ottawa Convention on anti-personnel mines, and the 2008 convention on cluster munitions. The effort to galvanize support for banning weapons of mass destruction (by using biological, chemical, and nuclear weapons) deserves special attention. The refusal of states to abandon such weapons and the efforts which they continued to make to produce and stockpile these weapons continue to endanger mankind as a whole. In this sense one can say that humanity has never been threatened as it is now.

This aside, one can say that many of the international humanitarian law instruments that have been ratified have now clarified practices which should not be tolerated during conflicts. Some of them, e.g., the genocide convention, prohibit the commission of genocide even in times of peace, a prohibition which includes complicity, attempts and conspiracy to commit this crime. The refugee convention encourages states to protect those who face a fundamental fear of persecution. Other humanitarian rules mentioned in The Hague and the Geneva Conventions outlawed the use of weapons such as poison, chemicals and expanding bullets. Abusing prisoners, hostage-taking, rape, forced relocation and the destruction of civilian properties such as pillaging, destroying hospitals and heritage were also prohibited by the same conventions.

The establishment of the International Criminal Court represents another mile-stone in the defense of humanity, since it created a forum for prosecuting the violators of international humanitarian law. Prior to this, the prosecution of these kinds of international crimes was left to the UN. This was why the UN had to create special tribunals to prosecute those who committed international crimes during the conflicts in the former Yugoslavia, Rwanda, etc. By the end of last year, 124 states had ratified the statute of this Court, making that institution a widely recognized body for monitoring respect for international humanitarian law.

The preambles of the statute of the International Criminal Court recognize “that all peoples are united by common bonds, their cultures pieced together in a shared heritage”, and express the fear that exists “that this delicate mosaic may be shattered at any time.” It recalls, further, that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that henceforth “the most serious crimes of concern to the international community as a whole must not go unpunished”. This instrument defines and elaborates the kinds of acts or conducts that should not be tolerated, namely genocide, aggression, war crimes and crimes against humanity. Article 7 specifies the recognized crimes against humanity’ if they are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. They include extermination, enslavement, attacks directed in an organized way against any civilian population, deportation, torture, forced pregnancy, collective persecution, enforced disappearance. In short, this statue has codified the pre-existing rules of international human rights law by crystallizing what were vaguely formulated before.

International human rights law: legal evolution and features

Human rights emerged as universally applicable legal rights thanks to the efforts made by civil societies, humanitarian organizations, political activists, progressive writers and states as a response to the gross human suffering and destruction seen during the Second World War.  In the course of mobilizing the masses to defeat the Fascist and Nazi states militarily, the galvanized masses and political actors were compelled to question the totalitarian and racist values and ideologies promoted by the aggressive powers. Thus, what started out as a military campaign for self-defence ended up in questioning the very structure and ideologies of the Aggressive Powers. If the new international organization that was to be established after the military campaign was to be legitimate and durable, it had to usher in a new world order which was sensitive to human rights.  It was, therefore, not surprising that the UN Charter had to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (preamble) and considered the promotion of “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of its purposes, in article 1(3).

This was clearly a novel development for a world that had never had a truly universal organization, let alone one that was mandated to promote this goal. The achievement can even be perceived as revolutionary since the great majority of the member-states had poor records of respecting human rights and were not equipped with human rights sensitive laws and institutions. What pushed them in this direction was the memories of the Second World War and the determination to co-operate with the UN to achieve this goal as pledged under article 56 of the Charter.

Indeed, as it turned out, it did not prove to achieve broader international co-operation once attention was turned to developing the general standard settings when the first universal document was prepared (later known as the Universal Declaration of Human Rights). This instrument was adopted on 10 December 1948 with no opposition, though eight states abstained. A factor that explains this wider base of support could be that its provisions were broadly formulated. The obligations of states to respect the proclaimed rights and freedoms were also avoided. There was the recognition that this document was not intended to be legally binding since the UN General Assembly had no power to adopt legally binding instruments. As the last preamble of this document states, the whole point was to use it as “as a common standard of achievement for all peoples and all nations” so “that every individual and every organ of society… shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance”.

The Universal Declaration recognized that “All human beings are born free and equal in dignity and rights” (article 1) and that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion or social origin, property, birth or other status” (art. 2). It lists the different civil, political, economic, social and cultural rights that should be promoted for all without discrimination. Using this standard setting, the UN General Assembly adopted numerous other declarations and later legally binding conventions crystallizing the recognized rights and freedoms and state obligations flowing therefrom. In 1966, for instance, the two international covenants (one on civil and political rights, and another one for economic, social and cultural rights) were adopted and both entered into force in 1975. Thus, within three decades of the establishment of the UN mankind had secured two legally binding universal human rights instruments even if the number of states that ratified them was not that impressive at the time. In the years that followed, more conventions were adopted strengthening the rights of vulnerable groups such as children, women, persons with disabilities and migrant workers, and addressing problems connected with discrimination.

One of the important feature of this development is the individualization of the recognized rights and freedoms (i.e. as the rights of every person), very much as recognized in the West traditionally. The only exception was that this time around the scope of the rights was broadened to encompass political, economic, social and cultural rights and the right holders were to be all under the jurisdiction of the ratifying states. There were a few recognized rights with collective character. They include the rights of peoples to self-determination (mentioned in article 1 of the two covenants), and minority rights (mentioned in article 27 of the covenant on civil and political rights).The other feature of these international legal instruments is the manner in which the obligations of the ratifying states were elaborated and the mechanisms established for monitoring how these obligations are complied with by considering regular reports and the submission of petitions.

Except for the right to life, equality, thought and religion, and the prohibitions of torture, cruel, inhuman and degrading treatment or punishment, the great majority of the recognized human rights are subject to restriction. The prohibition that is mentioned in article 4 of the civil and political rights covenant prohibits derogation from the obligations to respect the above-mentioned rights. This suggests that some of these rights have an ‘absolute’ character. The validity of this legal presumption is in line with article 53 of the Vienna Convention on the Law of Treaties which recognizes the existence of a pre-emptory norm of general international law (Jus Cogens) – i.e. “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”.

While the international community can take pride in having developed an international regime of human rights by adopting a long list of binding conventions, and developing the monitoring mechanisms, the actual record of states in complying with what is ratified is not that impressing. This monitoring system uses two separate paths to consider how states are complying with their human rights obligations. The treaty-based monitoring bodies examine the reports of states, and the communications that are sent by victims or state parties alleging human rights violations. The UN Charter-based monitoring bodies also consider the reports of states and those of the special rapporteurs, working groups and others. Using these and other sources of information, the UN Human Rights Council publishes its periodic reports on the human rights situation inside the member state. There are also other offices that play important roles in promoting or monitoring human rights. These include the High Commissioner for Human Rights, the High Commissioner for Refugees, UNICEF etc. Obviously, the effectiveness of these methods can be questioned and there is a long way to go when it comes to improving the system.

Humanitarian and human rights law: areas of intersection

The fact that international law has followed two distinct tracks when it comes to developing the rules related to international human rights and humanitarian law does not mean that there is no convergence between the two. Both derived their justifications from the need of protecting the dignity and worth of the human being. Both provide protection from slavery, forced labour, torture, cruel, inhuman and degrading treatment or punishment and rape. Both require humane treatment in prison. Humanitarianism looks at the broader context of what concerns us all and is guided by the values of humanity. These values arouse sympathy, empathy, love and compassion. The human rights laws are framed as the rights of the individual in the political context, rights which everyone is entitled to. Some of these rights are justiciable and even empowering (e.g., the rights to vote and take part in government).

Needless to say, the monitoring mechanisms of the international regime of human rights and international humanitarian law require improvement. There is a new doctrine which has been invoked lately to enable the international community to protect those that are exposed to serious international crimes: the international responsibility to protect (R2P). This doctrine has been invoked by the Security Council and the General Assembly (e.g., in the 2005 World Summit) in relation to serious conflicts and tragedies where states are seen to be either unable or unwilling to protect their own populations. This idea suggests that serious international crimes should be viewed as special concern to mankind as a whole. This fits the claim that there is humanity.

One can wonder, at the same time, whether the doctrine of R2P which has been invoked to ’rescue’ oppressed victims from the cruelty of their political leaders is always non-political, one that is just moved only by humanitarian considerations? If the intervention in Libya was triggered only by the urgency of saving Libyans, why abandon them now when the humanitarian situation facing them is much worse than before? If those that are intervening in the Syrian conflict are really moved by the tragic plight of Syrians in the hands of their cruel regime, and cruel it is, why are some of the states that are intervening in that conflict hesitant to even give asylum to Syrian refugees? Having said this, just because this doctrine can be abused by states does not mean that the international community should abandon it. If developed well, it can be used to vindicate the rights of humanity, irrespective of whether the crisis was brought by breaches of international human rights obligations or those flowing from international humanitarian law. In this sense, one sees a convergence between these two spheres of international law.

*Eyassu Gayim, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was presented at the Nordic Summer University conference held in Wroclaw, Poland, on 25 February 2017. The author is grateful to the Nordic Summer University for the support given to him to participate in this conference, and for the valuable comments given to language of this paper by Reverend Ezra Gebremedhin and Mogens Chrom Jacobsen.

Endnotes

[1] English Oxford Living Dictionaries https://en.oxforddictionaries.com/definition/human_being; and also http://www.dictionary.com/browse/humanity

[2] Thomas Hobbes, Leviahan (1651), Part II, Of Common-wealth available in the internet (http://www.philosophy-index.com/hobbes/leviathan/17-of-causes.php

[3] Immanuel Kant, Thomas Kingsmill Abbott, translator, The Metaphysical Elements of Ethics (Cambridge, Cambridge University Press, 1991), in, http://www.philosophy-index.com/kant/metaphysical_ethics/introduction.php

[4] Immanuel Kant, The Metaphysics of Morals, p. 255; and Richard Dean, The Value of Humanity in Kant’s Moral Theory (Oxford: Clarendon Press, 2006), especially pp. 7-8.

[5] Dictionary.com, in https://www.merriam-webster.com/dictionary/humanity Likewise, in Merriam-Webster (https://www.merriam-webster.com/dictionary/humanity) we see this term defined either as “the totality of human beings or the human race” or “The quality of being human or humane” in the sense of being “compassionate, sympathetic, or generous behavior or disposition”  See further Encyclopaedia Britannica, vol. 11 London: Encyclopaedia Britannica, Inc., 1969), p. 825; Peters, Pam The Cambridge Guide to English Usage (Cambridge: Cambridge University Press, 2004), p. 256, and Joyce M. Haukins & Robert Allen, The Oxford Enclopedic English Dictionary (Oxford: Clarendon Press, 1991).

[6] David Humes, An Enquiry Concerning Principles of Morals. (London: Strand, 1751- 1777 edition of the Essays and Treatises on Several Subjects reproduced in http://www.davidhume.org/texts/epm.html), conclusion M9.13.

[7] Ibid., conclusion, M9.7.

[8] Michel Agier, “Humanity as an Identity and Its Political Effects”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development > Volume 1, Number 1, Fall 2010 (https://muse.jhu.edu/article/394858), p. 31.

[9] Charles Sherlock, The Doctrine of Humanity: Contours of Christian Theology (Leicester: Inter-Varsity Press, 1996), p. 238.

[10] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: An Nal Book, 1962 (1964), p. 33.

[11] Ibid, p. 34.

[12] Richard Rorty, Human Rights, Rationality, and Sentimentality, reproduced in www.nyu.edu/classes/gmornan/3/RoRTY.pdf  pp.167-169 and 177.

[13] Ibid., pp. 177.

[14] Geertz, Clifford. 1963. ‘The Integrative Revolution: Primordial Sentiments and Politics in the New States’. In Clifford Geertz, ed. Old Societies and New States: The Quest for Modernity in Asia and Africa. London: London Free Press, 255–310.

[15] Agier, p. 30

[16] See the first preamble of the 1998/9 Statute of the International Criminal Court, in http://www.un.org/law/icc/index.html

[17] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 16.

[18] Eyassu Gayim, “The Discourse on Human Rights and the International Regime of Human Rights”, Nordicum-Mediterraneum Vol  11, no. 4, 2016.

[19] Lorrin Thomas, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Volume 6, Number 2, Summer 2015 pp. 337 – 340: James Dawes, Samantha Gupta, ”On Narrative and Human Rights”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2014, Vol.5(1), pp.149-151 (https://muse.jhu.edu/article/536275); and Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism, Frontiers of Anthropology, vol. 6 (Newbury: Sage Publication, 1990), p. 17.

[20] Austin Sarat and Thomas R. Kearns, Human Rights: Concepts, Contests, Contingencies (Ann Arbor: University of Michigan Press: 2001) p. 11.

[21] Claire Breay, Julian Harrison, Magna Charta: an introduction, in https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction.

[22] https://www.archives.gov/founding-docs/declaration-transcript

[23] Susan Maslan, “The Anti-Human: Man and Citizen before the Declaration of the Rights of Man and of the Citizen”, South Atlantic Quarterly, Spring/Summer 2004 103(2-3), p. 360 available in http://saq.dukejournals.org/content/103/2-3/357.full.pdf+html

[24] http://www.historyguide.org/intellect/declaration.html

25 UNHCHR, ”What are Human Rights?”, http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[26] Donnelly, p. 1.

[27] Austin Sarat and Thomas R. Kearns, p. 2.

[28] Lynn Festa. “Humanity without Feathers”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Vol. 1, no. 1 Fall 2010, p. 7, in https://doi.org/10.1353/hum.2010.0007

[29] Ibid., p. 9.

[30] Ibid., p. 19.

[31]Jean-Jacques Rousseau, The Social Contract, opening part of chapter 1, in http://www.sparknotes.com/philosophy/socialcontract/section2.rhtml

[32] Reproduced in, Micheline R. Isyay, ed., The Human Rights Reader: Major Political Essays, Speeches, and Documents from Ancient Times to the Present, 2nd ed. (New York: Routlege, 2007) p. 128, available in google.com.

 

Human Rights Education for Lawyers: A Case Study into Universality and Its Relativism

The 1993 World Human Rights Conference asserted “the universal nature” of human rights and identified human rights education and training as an essential tool for the promotion of universal respect for, and observance of, all human rights and fundamental freedoms for all, in accordance with the principles of universality, indivisibility and interdependence of human rights.

Disagreements and even attacks on the universality of human rights, however, are widespread. The strongest argument of opponents against the universality principle is essentially the contestable claim about the universal enforcement/implementation of human rights. These opponents propose to reconcile the universality of human rights by rooting these rights in different cultural and legal traditions.

The diversity of civilizations, religions, cultures and traditions has been accepted by states via their legal obligations since they have already been reflected in the universality of human rights and thus contributed to the international normative universality. The global human rights regime has a subsidiary character and relies mainly on national implementation of the universal human rights standards. However, there is a great gap between the “high inspiration of human rights and the sobering realities on the ground”[1]. The lack of the proper national implementation has negative consequences: human rights law loses its regulatory functions and people’s trust. As a remedy, human rights education should become a driving force in their national implementation. The national judiciary, including lawyers, has a primary role in protecting human rights and providing means for their enforcement at the national and international level. This is why human rights education for lawyers is of vital importance and may serve as a means for effective conveyance of human rights knowledge, awareness and skills.

Will the process of internalization of the international norms by communities and individuals be more effective if the universal standards are translated into local culture and legal traditions via human rights lawyers as agents of change? The present article provides a case study of two educational projects for lawyers (hereafter “the Projects”) and draws conclusions on whether human rights education for lawyers may bring about reconciliation between universality and relativism by strengthening connections of domestic legal systems with international human rights standards and values.

The paper is set out in six sections. The first section presents the outlines and the relevant sources for the concepts of “universality” and “relativism”. The second section is devoted to the framework and concept of “human rights education” (HRE), and here I place special emphasis on the HRE for lawyers (HREL). The third section outlines the frameworks of the two educational projects for lawyers (the Projects) – “Electronic Human Rights Education for Lawyers” (EHREL) and “Bring International Standards Home” (BISH), which are the main subject of the case study. The next three sections explore several specific doctrines, namely, “International Human Rights Standards”, “Implementation” and its lex specialis in the human rights law –   “de facto implementation”, “Human Rights Defender”.

These concepts served as support for the education objectives of the human rights education Projects and have as such been incorporated into the curricula and educational activities of the Projects. These sections provide examples, relevant statistical data and facts on the increased learners´ educational outcomes in terms of knowledge and understanding, attitudes, values and skills in promotion and protection of human rights. The content and the outlines of the last three sections emphasize that international human rights law, when taught to lawyers properly and systematically, provides considerable space for national implementation activities in the various paths of domestic legal and cultural environments, while aiming at the same time to promote and protect universal human rights for all.

I defend the view that the universality of human rights in training for lawyers is a key principle and a tool for legal professionals. The application of the universal human rights standards in de facto implementation is effective if the awareness and understanding of the principle of universality is rooted into the national legal context and “owned” by lawyers as “providers” of legal assistance to victims of human rights violations.

 

 

Universality and Relativism: Outlines

The article does not aim to provide a broad introduction to all arguments in the adversarial debate on universalism and relativism. However, since these two concepts will often be used in the article, it is important to explain them in more detail.

For the purpose of the paper, “universalism” is defined as universal respect for, observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations and other instruments relating to human rights and international law (para 1, the Vienna Declaration and Program of Action, 1993). As a departure point for the universality of human rights, I take the Universal Declaration on Human Rights (1948), Preamble, para 8.

The concept of “relativism” is regarded as a space for national, regional, cultural particularities and other forms of diversity and relativity (J. Donnely, 2007). The intensive study of cultural relativism was conducted under the auspices of the UN Human Rights Council in 2010 and 2012 (A/HRC/16/37 and A/HRC/22/71).

Relativity has different dimensions – cultural, religious, historical, traditional, etc. For the purpose of this paper, I will refer mainly to the legal relativity, meaning particularities of national legal systems, including legislation, practice and legal culture.

The academic research on the principle of universality in light of traditional values has been studied in depth and taken into account in the analysis of the main subject of the current case study.

Human Rights Education

The global normative framework for HRE was finalized with the adoption of the United Nations Declaration on Human Rights Education and Training in 2011.

The Declaration defined the main objectives, principles and responsibilities of States and other stakeholders. Particularly, it specified that HRE aims at promoting universal respect for and observance of all human rights and fundamental freedoms and thus contributing, inter alia, to the prevention of human rights violations and abuses by providing persons with knowledge, skills and understanding and developing their attitudes and behaviours, to empower them to contribute to the building and promotion of a universal culture of human rights.

Later, the aims were interpreted in the Report of the Office of the UN High Commissioner for Human Rights as follows:

 

Human rights education and training encompass: (a) knowledge and skills – learning about human rights and human rights mechanisms and acquiring skills to apply them in practical ways in daily life; (b) Values, attitudes and behaviour – developing values and reinforcing attitudes and behaviour which uphold human rights; (c) Action – taking action to defend and promote human rights.

HRE was recognized in international law as an individual human right and as a concept much earlier.

Indeed, the Universal Declaration on Human Rights (1948) was the first international document, which shaped the right for education and made an important step in recognizing a “special” right – the right for human rights education and awareness (Preamble and Art. 26 part 2).

The Vienna Declaration and Program of Action (1993) called national States to direct education towards the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It called on all States to include “human rights education programmes” as subjects in the curricula of all learning institutions in formal and non-formal settings.

The United Nations Decade for HRE (1995-2004) was the first global program and became a predecessor of the currently on-going World Programme for Human Rights Education.

The findings and lessons learned of the UN First Decade were of interest for those who deal with HRE: “Formal education is traditionally knowledge-based, and this approach alone is not conducive to attitudinal changes which are the objective of the human rights efforts”[2]; Lack of synergy between jurists and pedagogues, as well as the lack of coordination between Governments and NGOs; No effective coordination in place at the international level; Lack of human and financial resources to implement human rights education programs; Donors’ inconsistency in supporting programs conducted by civil society organizations; Lack of political will of some authorities and unwillingness to empower population with knowledge and awareness on universally recognized normative set of rights which might be claimed by individuals, etc.

Using the experience of the first decade and results of its evaluation, international and regional institutions have developed numerous guidelines and education standards for human rights education for different professional groups and levels of education.

The international framework for human rights education for lawyers (HREL), however, is still limited to the single reference in the Basic Principles of the Role of Lawyers (1990) stating that “governments, professional association of lawyers and education institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideas and ethical duties of the lawyer and human rights and fundamental freedoms recognized by national and international law”.

The Special Rapporteur on independence of judges and lawyers in her report submitted to the UN General Assembly (2016) referred to the duty and responsibility of lawyers to “uphold human rights and fundamental freedoms recognized by national and international law” as it was stated in the UN Basic Principles of the Role of Lawyers (1990). She has also reiterated that legal education and training should also include the study of international human rights at the domestic level, as well as to make use of international mechanisms, including regional mechanisms, for the protection of human rights.

During the last decade, the European initiatives – to ensure the most effective application of the European Convention of Human Rights at national level – resulted in designing and developing the pan-European training platform assisting all the member States in their action for effective integration of the Convention into the domestic legal judicial training. The aims and methodology of the HELP program based on the UN Declaration on the HRE and the World Program for HRE contribute significantly to the current landscape of HREL in many Council of Europe countries.

 

Bring International Standards Home and Electronic Human Rights Education for Lawyers

The case study presents the analysis of the results of the two human rights education projects: the first one, “Bring International Standards Home” (BISH, started in 2006 and ongoing), was tailored to lawyers and other professional groups from Belarus, while the second project, “Electronic Human Rights Education for Lawyers” (EHREL, 2009-2016) was designed for legal professionals of several CIS countries. Both projects have been implemented under the “International Law in advocacy” (ILIA) umbrella program of the Human Rights House Network (HRHN), which is well known in the countries participating in the Projects.

The current section describes the frameworks, conditions and features of the Projects, with references to some quantitative results. The qualitative outcomes of the training, with a focus on the universality principle, will be presented later in the sections regarding the specific concepts embedded into the curricula.

The Projects were developed by partners of the international human rights network – the Human Rights House Network – and experts who shared the common understanding of the need to improve the level of implementation of human rights obligations in the region and to provide better protection for civil society organizations, human rights defenders and the population at large. The Projects and their curricula were designed before the UN HRE Declaration was adopted. However, the international commitments and documents in the field of human rights education had been studied. Later on, the cooperation with the CoE HELP Program´s team contributed to strengthening the Projects´ outcomes. Remarkably, the Projects´ education framework implemented principles, which were very much similar to those included in the current UN HRE Declaration.

There is a good explanation for this fact, since the authors of the Projects’ curricula based them on the principles of the Universal Declaration on Human Rights and the relevant human rights treaties, with a view to:

  • Raising awareness, understanding and acceptance of universal human rights standards;
  • Applying the human rights-based approach and legal standards in daily professional activities;
  • Contributing to building an environment where everyone is aware of the rights of others and promoting the conception of the individual as a responsible member of a peaceful, pluralistic and inclusive society;
  • Pursuing the “de facto implementation” of the States’ international obligations, with the knowledge and clear understanding of the opportunities and limits of the national legislation and practice and, nevertheless, drawing inspiration from the diversity of the national legal systems participating in the training;
  • Contributing to the prevention of human rights violations via the dissemination of knowledge, awareness of and skills in the international human rights standards and instruments via professional lawyers’ networks and building bridges between lawyers and human rights organizations.

The diversity of cultural and legal traditions of the selected countries was taken into consideration and enriched the joint training of lawyers from these countries. Via a comparative method, the differences between the legal traditions and specific provisions of the domestic legislation and practice were interpreted and measured by the application of the international human rights standards.

The authors of human rights education and post-educational (follow up) activities for lawyers from the above-mentioned countries took into consideration the similarities between the legal systems in the participating countries. As it is commonly known, the CIS countries reappeared as independent states due to the collapse and the dissolution of the former Soviet state. However, they still have common features, including those related to the international human rights law instruments:

  • The Constitutions and national legislation of most CIS countries declare the entitlement to invoke the international law directly as a standard for cases when it provides higher protection for human rights;
  • The extensive sets of international and regional human rights binding instruments are formally recognized by the governments of the countries;
  • Most countries follow the monistic system in respect what regards the interrelation between international law and national law;
  • The judiciaries of these countries have rather poor knowledge of and skills in direct application and interpretation of international human rights standards;
  • Human rights education programs for lawyers, both in universities and conducted by professional lawyers´ associations have not been sufficiently developed;
  • The recent assistance of the CoE HELP Program can not cover all target groups of lawyers; etc.
  • In some countries, like Belarus, participation of lawyers in human rights education programs, unless approved by the Bar Association, might cause disciplinary measures against the lawyers;
  • Generally, in all the CIS countries, bar association’s lack understanding of the need for continuing human rights education of lawyers;
  • The last but not the least important point is that the population and the lawyers show high respect for the international human rights standards and acknowledge the legitimacy of the international and regional human rights judicial and quasi-judicial bodies ensuring justice in cases of human rights violations.

New information and communication technologies have been used to create an online learning platform (http: ilia.humanrightshouse.org) available for lawyers from different countries and remote regions.

The training for lawyers have used a combination between the online format of training and offline activities most suited for professional lawyers. The methodology and formats of the training were chosen taking into consideration the specific needs and working conditions of learners and their expectations regarding the improvement of the individual level of knowledge and skills and the widening of their professional network:

  • In-person introductory seminars in each of the countries;
  • Online distance learning seminars and lectures as the core teaching method;
  • Home reading and research;
  • Online forum discussions;
  • Home assignments and online tests;
  • Consultations with experts and evaluations of their home assignments; and
  • The final international conference including a moot court.

The Project partners conducted careful planning and fundraising activities to get the necessary resources, and undertakings to follow up on the training activities and support the alumni networking, advocacy and solidarity actions. The cross-border and international activities were designed and conducted in online and offline formats.

An important note: it is very difficult to evaluate the impact of education in general, and it is a very true statement for HREL as well.  Some numbers (collected in 2015), however, may give an understanding of the quantitative results of the Projects’ alumni:

  • 4,860 consultations on human rights violations
  • 172 strategic litigation cases in the area of human rights
  • 325 people participating in the “Human Rights Lawyers as a Group at Risk” online forum run by the alumni
  • 394 alumni and experts participating in online discussion fora and knowledge sharing in the ILIA-Club
  • 27 reports and documents written or co-written by the alumni and submitted to international organizations
  • 90 % of the alumni collaborate with the Human Rights Houses within the Human Rights House Network or with other human rights organizations
  • 97 % of the alumni use the knowledge gained in ILIA in their professional activities.

While education in the field of human rights generally has the ultimate goal to increase respect for human rights leading to social changes, the evaluation of the results of HREL might be measured by identifying the changes at different levels:

  • Individual: what knowledge, skills, attitudes and behaviours has a participant acquired, reinforced and modified?
  • Organizational: have the participants shared their experience with their professional environment and in what way?
  • Social: changes, which have occurred to a broader community.

As mentioned above, there are difficulties with tracing the results of the changes that have taken place. At the same time, the focus of the current paper on the principle of universality of human rights and its application in the context of the national implementation allows us to present the most relevant selected data, which reflect the social and attitudinal changes in the learners in this regard.

 

Common (Universal) Standard(s)

 

Now, therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948), Preamble.

The term and the concept of the “Universal Human Rights Standards” or “International Human Rights Standards” (IHRS) are broadly used in political and public life. There is no definition of the term in place and, for the sake of clarity, lawyers need to understand the concept in order to use it in their professional activities. This is the main reason why the term has been presented to and studied by the learners of the two HREL Projects.

The importance of the concept in terms of its adherence to the universality of human rights was also taken into consideration:

  • After being proclaimed in the Universal Declaration on Human Rights, the notion has been effectively used in the legal turnover both at the international and national levels.
  • By virtue of the principle of universality, the IHRS perform regulatory, control, protective, informative and educative functions regardless of whether the concrete international norms give rise to a legal obligation for a specific country.

The persistent application of the term and the expression in the legal practice has even expanded during the last two decades. International bodies “…have made remarkable progress in standard setting, institution building, and programme implementation[3]. The CIS member states reiterate that “… the observance of international standards in the field of human rights by all Member States of the Commonwealth of Independent States, and the development and fostering of respect for human rights and fundamental freedoms for all, regardless of race, sex, language, political beliefs, religion and social origin, contribute to the deepening of democratic reforms, economic and social growth and the strengthening of law and order[4].

The sustainable application of the term “International Human Rights Standards” in the CIS region plays an important role for the process of effective practical acceptance of legal sources of international law.

One should know that Article 38 of the Statute of the ICJ, generally accepted as a list of sources of international law, does not have the same importance in theory and practice of the CIS countries. Scholars and practitioners of these countries tend to apply the IHRS as a generic term for the cases where there is a need to apply a combination of different sources of international law, as well as a “mixture of hard and soft instruments”.

The challenge to define legally the term “International Human Rights Standards” has been taken by the authors of the curriculum as an opportunity to discuss with the learners some important features related to the term.

Lawyers study the process of standard setting at the international level. They start out trying to understand the principle of legal certainty (inspired by legal positivism) and further on the need for a broader perception of the rights-oriented concept (human rights as a product of “natural law”).

Since the generic term IHRS brings together different types of international instruments (such as those that are recognized sources of international law and the so-called “soft law” and “case law” instruments), the learners are invited to make a comparative study and select the “hard” and “soft” law instruments such that they will be able to combine them in their professional activities, defending victims of human rights violations and interpreting the national legislation applying the IHRS.

Discussions in forums and home assignments help the learners to understand that IHRS is a “live” concept, which combines different universal norms and serves as a tool for identifying human rights violations and applying the standards to actual situations at the domestic level.

As a result of the training, all the alumni look for the “standards” in their professional activities when they need to challenge and/or examine the national legislation and/or practice. They know that the IHRS may assist the national legislators when preparing amendments to the national legislation; they use international standards as a scale to analyse the compliance of the national law with the international obligations, they consult not only to provisions of the treaties, but also to the concluding observations and decisions of the human rights mechanisms, such as the treaty bodies and regional human rights courts.

98.2% of the alumni gave a positive response to the question, “Do you refer to the norms of the international human rights law in your professional activities?”. The following quotes illustrate the responses:

“Before my training in the project “Electronic Human Rights Education for Lawyers”, I did not use the human rights approach and international human rights law. Now, I refer to provisions of the international human rights treaties, but also to the customary rules, general principles of law and the soft law instruments. Unfortunately, in our country, the court and judges are not used to applying the international norms. Sometimes, I see a lenient or even a hostile attitude towards references to the international standards. We need to change the situation and I see my role in this as well.” (alumnus from Belarus)

“My current pleads to the courts are based on the international human rights standards. I noticed that the judges and persecutors listen to my pleads with higher attention and interest since the international human rights law is a new topic for them. My clients have trusted me even more since I started referring to the international standards. I have become more confident in my professional activities since I know that if the national courts fail to ensure justice I will be able to restore it using the international human rights regime” (alumnus from Ukraine)

 

 

Implementation – De facto implementation – Bring standards home

A wide interest to the legal concept of “implementation” and the relevant term arose after the adoption of the “post-communist” constitutions. Most of the constitutions have propositions on the monistic approach towards international law and declare human rights as the aim and the priority of the States.

However, the narrow definition of the legal concept of implementation as organizational activities undertaken by national governments and covering mainly legislative procedures still prevails. There is a need to define the broad meaning of the process of domestication of the international treaties in the national legal systems. The broader understanding of the process of implementation will stimulate manifold activities, planned and conducted by different actors and targeting the full compliance of the national legislation and practice with the international human rights standards.

Thus, the direct application of the international human rights norms in the defence of people´s rights by a wide range of actors is called by the author de facto implementation and is considered as a lex specialis of the general concept of implementation.

The first human rights training curricula of the Projects for lawyers were designed in 2005 under the long title ”De facto implementation of international obligations of the Republic of Belarus in the field of civil rights and freedoms”. Although the title clearly reflected the main idea of the human rights training for lawyers, it had a disadvantage – it was too long. The current brief name “Bring International Standards Home” suits the Project even better since it conveys the major message – the aim to train lawyers in the application of IHRS in the national practice.

Lawyers were invited to study the problem of the national implementation in depth and to discuss possibilities regard the national implementation of the universal model.

In reality, the international human rights law has designed an algorithm, which may influence the national implementation process. Lawyers have to know it. An attempt to lay out a model for the national implementation approach was made in Article 2 of the ICCPR.

  1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

  1. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

 

The Article, together with the interpretation provided by the UN HR Committee, constitutes a model of the national implementation process. The wording “giving effects to the rights” expresses the true meaning of the process of national implementation. Learners are provided with the knowledge of and skills in how to interpret the provisions and strengthen a claim through direct application of international human rights provisions. The authors of the BISH curriculum for training of the Belarusian lawyers included the following topics:

  • National mechanism of the implementation of international obligations, including constitutional and ordinary law provisions and safeguards for primacy of human rights and international obligations in case of their non-compliance with national legislation,
  • Interpretations of provisions of international treaties as legitimate tools and applying international provisions directly in national litigation and practice.

Later, the EHREL project also included the above-mentioned topics in the curriculum and additionally issued a comparative analysis of the national legislation regarding the implementation mechanisms in several countries prepared by national experts. The entire distance education EHREL cycle included nine separate courses; the first stage of the cycle focused on human rights doctrine, law, standards and mechanisms, while the second stage focused on the implementation of human rights at both the international and national levels.

The term and the concept of “implementation” were studied in depth. In addition to the previous clarifications, several other reasons for that should be mentioned. First of all, in the international law, there is no unified definition of the “implementation” concept. Moreover, the term overlaps with some other legal notions, such as enforcement, application, compliance, etc. The term “implementation” is furthermore avoided in the official Russian translations of the UN documents, since they would rather use the word “osuschestvlyat” that is not a legal notion and has a broad meaning closed to the word ”realisation”. As a result, the CIS national legal systems, which use the Russian language in legal transactions, have difficulties with the practical and doctrinal application of the term and the concept ”implementation”.

Since the legal mechanisms and specific legal acts on domestication of the international law often contradict each other and show signs of dualism, it is crucially important for practising lawyers to be aware of the superior role and power of the international human rights provisions in their national legal orders.

Finally, since the traditional “implementation” concept of the international public law has been significantly changed in the realm of the international human rights law, lawyers need to understand this new framework.

The application of a broad concept of implementation of the international human rights law supports the principle of universality and makes it alive. Indeed, in cases where the national legislation and/or practice fail to comply with the IHRS, lawyers may invoke the universal propositions directly on human rights and provide higher protection to a victim.

Several different methods and training activities have been used for training on the subject:

  1. The learners were invited to study the national legislation, as well the relevant reports to the international bodies, in a search for the term “implementation” and its sense of “giving effect to the rights”.
  2. The learners from all five countries had a joint discussion on the monist and dualistic approaches towards international human rights law in conjunction with the provisions of the Universal Declaration on Human Rights, as well as the Preamble and Article 2, part 3 of the International Covenant on Civil and Political Rights. The aim of the exercise was to show the learners that the principle of universality, embedded into the above-mentioned provisions, provides a monistic approach for the direct application of international human rights law.
  3. Finally, lawyers had a home assignment to prepare a plan of activities with aiming at implementing the recommendations given to a country within the Universal Periodic Review procedure. The task required from lawyers a good understanding of implementation as a concept and as a set of activities. It is assumed that the “de facto” implementation embraces not only legislative measures, but also a broader spectrum of activities including strategic litigation, public campaigns and dialogue with the authorities and the civil society organizations.

In the course of the training, consequently, the term “implementation” was applied in the broad meaning, i.e. it includes manifold activities which aim at ”giving effect to the rights” and are to be conducted by national governments, but motivated by other actors as well, including lawyers and individuals.

One should take into account that in the previous periods a number of publications were prepared within the Projects framework. These publications address the scope of practical aspects in the implementation concept, including those connected with the institute of individual complaints. The authors of the publications have disseminated knowledge on the interrelation between the international law and domestic law provisions and clarified the issues related to the legal force of the views of the UN treaty bodies and admissibility of individual complaints to the UN Human Rights Committee and other treaty-bodies. These publications have been distributed among and were highly popular among the Project alumni, legal professionals, human rights NGOs, students, etc.

The concept of “implementation” has become familiar and practical. Lawyers do use it with the awareness of the fact that once a national legislation was adopted as a result of the international treaty domestication process, it does not stop being scrutinized regarding its compliance with the universal human rights standards. The implementation process continues and lawyers have to play an active role in it.

According to the survey statistics, the alumni use the knowledge and skills in their professional activities: when preparing legal documents, for argumentation in pleadings, in teaching/sharing knowledge, in consultations, analytical work, to enlighten the authorities, in law making, reporting, etc.

 

 

Everyone, Individual, Human Rights Defender, Human Rights Lawyer

 

Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

Declaration on human rights defenders (1998), Article 1.

The human rights law has changed several doctrines of the “classical” public international law. One of the important changes is the recognition and institutionalization of the status and role of individuals in the process of standard setting, monitoring and other activities related to the implementation of the states’ obligations in the field of human rights obligations.

In his review of the international human rights system, Thomas Burgenthal (Judge of the International Court of Justice from 2000 to 2010) writes that while previously the activities in the field of international law were related only to the activities of the states, now an individual or a group of individuals may replace or supplement the role of the states in the international legal regulation. “New technologies and growing complexity of solving global problems have increased the level of uncertainty in decision-making, contributed to the ‘blurring‘ of authority in decision-making at the international level”, “technology destroyed the state monopoly on the collection and dissemination of information”[5] all these factors have contributed even more to the process when the new actors take on some of the operational functions in contemporary international law.

The legal doctrine and university curricula of the CIS countries, for many reasons, fail to highlight these changes. As a result, lawyers, graduating from the state universities, have a limited or vague understanding of the current composition of actors and subjects in international law and still rely on the tenets and practices of the classical public law where only states are recognized as full-fledged subjects of international law.

Neither have they professional confidence in pursuing legal claims and processing claims for social changes at the national and international levels. In reality, to work on cases on alleged human rights violations, lawyers need to understand that their status, immunities and protection guarantees will be expanded to their new role as representatives of victims of human rights violations at the international level.

Among the Projects’ educational goals are those enabling lawyers to influence the standard setting process, to improve the level of the national implementation of the international standards and to raise the awareness of the civil society and professional community regarding the role of lawyers and the guaranties and immunities surrounding their work on human rights promotion and protection.

Since the training is conducted within the international network of non-governmental entities sharing the common mission – to support human rights organizations and human rights defenders – the participants are motivated to learn more about the legal mechanisms eligible to support and provide better protection for human rights work.

From the very beginning of the training, the learners are made familiar with the concept of ”Human Rights Defenders”. They study the legal framework for human right defenders’ work, starting with the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”, often referred to as the “Declaration on Human Rights Defenders” (1998).

The issue of the role of individual and the legal representation of victims of human rights was studied during all the thematic courses included in the curriculum. Particularly, the training made the learners familiar with the procedural instruments for individual complaints in the framework of the international (UN) and the regional (CoE) mechanisms within the courses “Human rights protection system established by the UN” and ”Human rights protection system established by the European Convention on Human Rights”. The training also developed lawyers’ practical skills in preparing legal claims for submission to the international bodies. It made them understand that individual communications fill the gap, which is a result of the failure by the states to take action as parties to the human right treaties.

 

“The ILIA programme encouraged me to think in new ways. In Ukraine, the European Court of Human Rights is used quite frequently, but not the UN mechanisms. Sometimes they can be the right remedy. For instance, I learned about the Working Group on Arbitrary Detention – and that is an important tool in my current work with refugees. Submissions to the Working Group are quite effective for prompt advocacy”. – Lawyer, Ukraine

However, the increasing numbers of individual communications to the international bodies, prepared by the Projects alumni, are not the most important indicator in the Projects’ evaluation framework. Indeed, HREL aims mostly to raise awareness of lawyers in terms of promoting and protecting the conditions in which the activities of individuals might be more efficient.

The awareness of the alumni of their human rights work as well as their knowledge and skills in advocacy, including the solidarity and promotion of human rights standards for legal professionals have also been developed during the training and follow-up activities.

Let me briefly describe an example of the alumni’s joint work on a case concerning protection, monitoring and standards setting. Lawyers studied and discussed the international set of principles and guaranties for lawyers (UN Basic Principles on the role of lawyers) during the online training. Later, at the conference “Lawyers: human rights protection and guaranties for professional activities”, the alumni discussed the problems of the status of and guaranties for lawyers in the CIS region and decided to conduct monitoring activities.

Soon after the conference, the conference moderator, Intigam Aliev – the best-known lawyer in Azerbaijan, who embodies justice in the country, and the EHREL Project expert and partner – was arrested. In 2015, he was sentenced for his work to seven and a half years in prison. In his plead to the court he said:

“My activities related to the European Court, in particular, the cases on violations of electoral rights, have played a big role in my arrest. That work irritated the authorities badly, and I was repeatedly informed about the possible unwanted consequences of that work for me and for our organization” (A quotation from the final speech of the prominent human rights lawyer Intigam Aliyev in court, Baku, Azerbaijan, April 2015).

 

Immediately after the arrest, the alumni and experts launched online solidarity actions and sent communications to the national authorities reminding them about the international human rights guarantees and lawyers’ immunity.

In September–November 2014, lawyers, mainly the Projects’ alumni, organized an online analytical group to monitor the situation in the CIS region and to conduct an online survey (more than 100 lawyers answered questions).

In 2015, the alumni participated in the legal consultations, in the preparation of an amicus curia letter to the European Court on Human Rights. They contributed to the formulation of the legal position of attorneys defending Intigam Aliyev and other human rights defenders arrested and persecuted in Azerbaijan. The position was based on the findings of the analytical group and highlighted the special status of human rights defenders including human rights lawyers. Later their findings were reflected in the ECHR case law.

Lawyers from all five countries continue to participate in solidarity actions against repression in Azerbaijan. The report “Human Rights Lawyers at Risk” was finalized and dedicated to Intigam Aliev.

This specific example illustrates several important competences, which have been acquired by the lawyers during the training and owing to the professional cross-border networking activities:

  • Ability to critically analyse the national legislation;
  • Ability to conduct comparative analyses of practice between five countries with respect to professional standards and the implementation of international professional standards in these countries including Azerbaijan;
  • Vision and knowledge of international mechanisms on human rights defenders and readiness to contribute to the standard setting and development of the existing standards on lawyers’ professional guaranties;
  • Appreciation and readiness to start a national implementation by applying both international standards and the findings of the Report with a view to enforcing the standards at the national level;
  • Understanding the importance of joint solidarity campaign and legal assistance for special cases protecting human rights defenders and human rights lawyers
  • Rendering legal aid with the application of the international standards developed for human rights work;
  • Issuing a report, which revealed problems and indicated that lawyers who work on human rights are less able to enjoy the professional immunities and guarantees, which should protect them. The main finding of the report is as follows:

 

Human rights lawyers are both lawyers and human rights defenders. Guarantees and immunities for lawyers enshrined in national and international law must be implemented and respected, while human rights guarantees must extend to all who work within human rights, including human rights lawyers.

After the Report was presented at the OSCE Conference and in the CoE in 2015, the authors of the report were invited to the regional consultations with the UN Special Rapporteur on the Independence of Judges and Lawyers. In August 2016, the Report of the Special Rapporteur on the Independence of Judges and Lawyers was submitted to the UN General Assembly.

Among the trends and challenges highlighted by the Special Rapporteur, there are several issues, which may become newly updated universal standards – and which have been extracted from the report “Human Rights Lawyers at Risk” and the recommendations prepared by the participants of the consultations:

The right of access to clients imprisoned, even if lawyers are not members of bars that is when they represent clients before international and regional human rights courts (p. 52 of the UN SR Report); Lawyers engaging in representation of clients before international and regional courts should be awarded the same guarantees and protection as lawyers litigating in local tribunals regardless of whether they are or are not members of their national bar associations (p. 53 of the Report UN SR); Lawyers shall be regarded as human rights defenders if the work of the lawyers is closely related to the promotion and protection of human rights; Guaranties for human rights defenders shall embrace lawyers if they conduct human rights work (part 4 of the “Lawyers as human rights defenders” Report UN SR).

Conclusions

1.

Normative articulation of human rights with emphasis on their universality is a great achievement of the international community, which was crowned by the adoption of the Universal Declaration on Human Rights.  The further development of the international human rights regime, however, was and will be challenged by practitioners, politicians and academics who point to the unsatisfactory level of national implementation of international commitments and look for ways to root common standards into local contexts.

2.

Human rights education has a fundamental importance in contributing to promotion, protection and realization of all human rights. The international framework includes different educational and training activities, which might be tailored to specific groups. Human Rights education for lawyers is essential. International law, however, leaves it mainly to national governments and bar associations to ”ensure that lawyers receive appropriate education and training” and are ”aware of the ideals and ethical duties of the lawyer and human rights and fundamental freedoms recognized by national and international law” (UN Principles on the Rule of Lawyers). In the last decade, the CoE has started to disseminate programs and online courses for pan-European countries in order to improve levels of human rights education and decrease a flow of individual claims to the ECHR.

3.

The case study of the two educational Projects conducted by the Human Rights House Network shows that a systematic training for lawyers might have a great potential in terms of bringing the universal human rights standards home. Evaluation of results of educational Projects on human rights for lawyers of five countries of the CIS region (Azerbaijan, Belarus, Moldova, Ukraine and Russia) reveal changes at the individual level in knowledge, skills and attitudes gained during the training. Quotes of participants´ replies included into the main part of the paper demonstrate that the changes also concern the learners´ increasing awareness and respect for human rights and observance of the universal standards at the national level.

4.

Evaluation of results also show that changes at the individual level pushed lawyers to disseminate their knowledge through professional and social activities.

The following brief overview reminds us about the impact:

97% of alumni use the knowledge gained in the Projects in their professional practice.

90% of alumni collaborate with Human Rights Houses in their countries or/and with other civil society organizations.

Most of them report that they changed their professional methods and start to apply international human rights standards in litigations, but also in other activities aiming at the transformation of their national systems: “I see the prospect in the implementation of international standards to amend national law… We have to explain to people what we need to change in our national legislation that it will be good and useful for us, and then, after these changes are made, our law will match the international standards. The way to change should come from people and their understanding, not from international bodies.” – Alumni Belarus

394 alumni and experts have regularly communicated via online channels to exchange knowledge and take part in solidarity actions. Alumni provided almost 5000 legal consultations (in 2015) to victims of human rights violations and conducted 172 strategic court cases to address acute problems with national implementation of international obligations in the field of human rights. 325 alumni have contributed to developing international standards for guaranties and immunities of human rights lawyers.

5.

To prepare lawyers for the practical application of the principle of universality, the human rights education program shall include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency.  The gained experience shows that lawyers of the CIS region often lack the knowledge on peculiarities of international human rights law which makes it different from”classical” public law. Concepts such as ”International Human Rights Standards”, ”Implementation and de facto implementation” as well as ”Status and Role of Individual/Human Rights Defender” shall be delivered to learners to ensure their understanding of the direct applicability of international human rights norms and about the eligibility of individuals in promoting and protecting human rights at the national and international levels.

6.

After lawyers have ”appropriated” the doctrinal and practical issues on international human rights law and have restudied the national provisions with respect to the effective implementation of international standards, the lawyers will become effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

Bibliography

HELP Guidebook on Human Rights training methodology for legal professionals, Council of Europe, 2016. Retrieved from https://rm.coe.int/168066db63

UNGA Report of the Special Rapporteur on the independence of judges and lawyers. (22 August 2016), UNI Doc A/71/348, 2016. Retrieved from http://undocs.org/A/71/348

“International Law In Advocacy” (ILIA) and Projects “Bring International Standards Home” and “Electronic Human Rights Education”, Human Rights House Network (2016) Retrieved from http://humanrightshouse.org/Projects/ILIA/index.html

Information flyer ”International Law in Advocacy”, Human Rights House Foundation, (2016)

Online educational resources with training materials, e-library, online workshops and  online courses of the ”International Law in Advocacy” Retrieved from http://ilia.humanrighsthouse.org

Human Rights Lawyers at risk, Report of the Human Rights House Network, 2015. Retrieved from http://humanrightshouse.org/Articles/21175.html

UNGA Plan of Action for the third phase of the World Program for Human Rights Education (4 August 2014), UN Doc A/HRC/27/28.

UN HRC Workshop on traditional values of humankind. Report of the United Nations High Commissioner for Human Rights (13 December 2010), A/HRC/16/37

UNGA ‗Draft plan of action for the second phase (2010-2014 of the World Programme for Human Rights Education (27 July 2010), UN Doc A/HRC/15/28.

OSCE Guidelines for human rights education: Guidelines on Human Rights Education for Secondary School Systems (2012), Guidelines on Human Rights Education for Health Workers(2013), Guidelines on Human Rights Education for Human Rights Activists (2012), Guidelines on Human Rights Education for Law Enforcement Officials(2012).

UN GA HRC_ Study of the Human Rights Council Advisory Committee on promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind (13 December 2012). UN Doc A/HRC/22/71.

UN HRC Res 66/137: Declaration on Human Rights Education and Training, adopted (19 December 2011). UN Doc A/RES/66/137

UNGA ‗Draft plan of action for the second phase (2010-2014 of the World Programme for Human Rights Education (27 July 2010), UN Doc A/HRC/15/28.

UN HRC Res 15/11: World Programme for Human Rights Education: Adoption of the Plan of Action for the Second Phase of 6 October 2010, A/HRC/RES/15/11.

UNGA ‗Revised Draft Plan of Action for the First Phase (2005–2007) of the World Programme for Human Rights Education‘ (2 March 2005) UN Doc A/59/525/Rev.1.

SECRETARY-GENERAL, IN ANNIVERSARY MESSAGE FOR WORLD CONFERENCE ON HUMAN RIGHTS, UNDERSCORES IMPORTANCE OF STRENGTHENING RELEVANT EDUCATION AT ALL LEVELS Retrieved from http://www.un.org/News/Press/docs/2008/sgsm11763.doc.htm

Human Rights Standards: Learning from Experience (2006) International Council on Human Rights Policy. Retrieved from http://www.ichrp.org/files/reports/31/120b_report_en.pdf

UN Commission on Human Rights ‗Promotion and Protection of Human Rights: Information and Education: United Nations Decade for Human Rights Education (1995–2004): Report on Achievements and Shortcomings of the Decade and on Future United Nations Activities in This Area‘ (25 February 2004) UN Doc E/CN.4/2004/93.

UN GA Res: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”(09 December 1998) UN Doc 53/144.

Vienna Declaration and Programme of Action‘ UN World Conference on Human Rights (25 June 1993) UN Doc A/CONF.157/23. Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993.

КОНВЕНЦИЯ СОДРУЖЕСТВА НЕЗАВИСИМЫХ ГОСУДАРСТВ О ПРАВАХ И ОСНОВНЫХ СВОБОДАХ ЧЕЛОВЕКА (26 мая 1995 года), Retrieved from http://www.consultant.ru/document/cons_doc_LAW_6966/

Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990.

CCPR General Comment. № 3 «Implementation at the national level». (Art. 2) (1981); «Reporting guidelines». CCPR General Comment. № 02 (1981); «General measures of implementation of the Convention on the Rights of the Child» (arts. 4, 42 and 44, para. 6) СRС. № 5 (2003); «The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights». CCPR General Comment. № 33 (2009) etc.

International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of (16 December 1966).

Universal Declaration of Human Rights, UNGA Res 217 A (III) (10 December 1948) GAOR 3rd Session Part I Resolutions 71.

Report of the UN Special Rapporteur Monika Pinto Report of the Special Rapporteur on the independence of judges and lawyers (2016), A/71/348 https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/264/93/PDF/N1626493.pdf?OpenElement.

An-Naím, A. A. (1992) Towards a Cross-Cultural Approach to Defining International Standards of Human Rights In A. An-Na’im (ed) Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. University of Pennsylvania Press, Philadelphia.

Donnely, J. (2007). The Relative Universality of Human Rights, Human Rights Quarterly Vol. 29, pp. 281-306.

Nowak, M. (2009). Challenges to National Implementation of International Human Rights Standards –Background Paper WG I. Global Standards – Local Action. 15 Years Vienna World Conference on Human Rights. Eds: Benedek, Wolfgang and others. Wien-Graz, 2009.126–127.

Zwart, T. (2012) Using Local Culture to Further the Implementation of International  Human Rights: The Receptor Approach.  Human Rights Quarterly Vol. 34, Number 2. pp. 546-569

Seibert-Fohr, A. (2001)Domestic Implementation of the International Covenent on Civil and Political Rights Pursuant to its article 2 para 2, Max Planck Yearbook of United Nations Law, Vol. 5, pp. 399-472.

Merry, S. E. (2006), Human Right and Gender Violence: Translating International Law into Local Justice, Chicago Series in Law and Society.

Ульяшина, Л.(2016) Международные стандарты и их имплементация в праве прав человека. Lambert Academic Publishing. – 485 с.

Ulyashyna, L. (2016) Human Rights Defenders – new actors in implementation.  Uniwersalne standardy ochrony praw chlowieka a funkcjonowanie systemow politycznych w dobie wyzwan globanych/red. naukowa prof. Jerzy Jaskiernia, Torun ́ pp. 416- 439

Ulyashyna, L. (2013) International Human Rights Standards: Problems of Legal Definition and Challenges by Application. Wpływ standardów międzynarodowych na rozwój demokracji i ochronę praw człowieka / red. naukowa prof. Jerzy Jaskiernia Tom 1, Wydawnictwo Sejmowe. pp.25-35.

“Свобода выражения мнения, собраний, и объединений”(2006).  Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Примеры индивидуальных обращений (2008). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Права человека: международное Право и национальное законодательство (2011). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Индивид v. государство: практика обращения в договорные органы ООН применительно к РБ (2012). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Individual v. State: Practice on complaints with the United Nations treaty bodies (2014). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Индивид v. государство:практика обращения в договорные органы ООН Том II (2016) Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Эффективность использования международных правозащитных механизмов в отношении Беларуси (2015). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Acknowledgements

This research is results of analysing and introducing generally available data at:

http://humanrightshouse.org/Projects/ILIA/index.html; and

http://ilia.humanrighsthouse.org.

The quotations from interviews of alumni due to anonymity are not individually listed in the bibliography.

The Projects and the ILIA Program have been supported by the Norwegian Ministry of Foreign Affairs; Matra/KAP Small Embassy Projects Programme, the Netherlands Embassy in Warsaw, The National Endowment for Democracy; the USA The German Marshall Fund of the United States, The Nordic Council of Minister’s Support Programme for NGOs in the Baltic Sea Region Council of Europe; Fritt Ord Foundation, Norway International Renaissance Foundation; Ukraine Irish Aid Konrad Adenauer Foundation Germany; ODIHR/OSCE/European Commission; Open Society Institute; France Civil Rights Defenders Department of Foreign Affairs; Trade and Development (DFATD) Canada; The Swedish International Development Cooperation Agency (SIDA); US Agency for International Development (USAID); German Embassy in Ukrain Khariv; Human Rights Protection Group U.S. Embassy in Ukraine; American Bar Association (ABA, Justice Defenders Program); OSCE Mission to Moldova; UN Development Programme (UNDP Moldova); Norwegian Mission of Rule of Law Advisers to Moldova (NORLAM); Stefan Batory Foundation; Poland Polish Ministry of Foreign Affairs via Polish Aid Programme; Forum Syd.

 

 

Comments

 

* The author of the paper is a co-author and an acting expert of both the Projects curricula and several courses of the Projects. Since 2006 until now, I manage the ”International Law in advocacy” Program, the Human Rights House Foundation, Oslo, Norway. All examples and data used in the Report are available in open sources. Only in some cases, I used my own archives and former publications.

** In this paper, I used the terms “post-communist” countries and “CIS countries” (the Commonwealth of Independent States) as synonyms for the countries of the former Soviet Republics, reappeared during and after the breakup of the Soviet Union.

*** It is worth referring to the main sources of inspiration for this paper and specifically:

  1. on the principle of universality in light of traditional values:

Jack Donnelly “The Relative Universality of Human Rights” (2007), Anja Seibert-Fohr
“Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to Its Article 2 Para 2” (2001), Tom Zwart “Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach” (2012),
Report: “Human Rights Standards: Learning from Experience” issued by the International Commission of Jurists & the International Service for Human Rights ICHRP, International Council on Human Rights Policy (2006), Vladimir Kartashkin
“Preliminary Study on Promoting Human Rights and Fundamental Freedoms Through a Better Understanding of Traditional Values of Humankind” (2011), Sally Engle Merry “Human Right and Gender Violence: Translating International Law into Local Justice” (2006), Abduhlahi Ahmed An-Naím, “Towards a Cross-Cultural Approach to Defining International Standards of Human Rights” (1992), Study on Promoting Human Rights and Fundamental Freedoms Through a Better Understanding of Traditional Values of Humankind, UN Human Rights Council Advisory Committee, 2012,A/HRC/22/71;

  1. on the Role of Lawyers and human rights education:

Report “Human Rights Lawyers at Risk” (2015) issued by the Human Rights House Foundation in cooperation with several international organizations and experts, Report of the UN Special Rapporteur Monika Pinto Report of the Special Rapporteur on the independence of judges and lawyers, 2016, A/71/348.

Endnotes

[1] Nowak, M. «Challenges to National Implementation of International Human Rights Standards –Background Paper WG I». Global Standards – Local Action. 15 Years Vienna World Conference on Human Rights. Eds: Benedek, Wolfgang and others. Wien-Graz, 2009.126–127.

[2] United Nations Decade for Human Rights Education (1995-2004): Report on achievements and shortcomings of the Decade and on future United Nations activities in this area. E/CN.4/2004/93, 25 February 2004, p.25.

[3] SECRETARY-GENERAL, IN ANNIVERSARY MESSAGE FOR WORLD CONFERENCE ON HUMAN RIGHTS, UNDERSCORES IMPORTANCE OF STRENGTHENING RELEVANT EDUCATION AT ALL LEVELS Retrieved from http://www.un.org/News/Press/docs/2008/sgsm11763.doc.htm

[4] КОНВЕНЦИЯ СОДРУЖЕСТВА НЕЗАВИСИМЫХ ГОСУДАРСТВ О ПРАВАХ И ОСНОВНЫХ СВОБОДАХ ЧЕЛОВЕКА, 26 мая 1995 года, преамбула.

[5] Burgenthal, Thomas. «The Evolving International Human Rights System», in International Law: classic and contemporary readings edited by Charlotte Ku London. 2009. Р. 289–319; Charnovitz, Steve. Nongovernmental Organizations and International Law. Ibid. Р. 117–137. Mathews, J.T. «Power Shift», Foreign Affairs,76, № 1 (1997). Р. 50–66.

Protestant Origins of Human Rights Challenged

This paper argues that certain core elements in Protestant theology are incongruent with human rights as they were understood by the 18th-century declarations. These declarations expressed a liberal understanding of society that would leave the individual a rather extensive sphere protected from government intervention. Protestant theology exacerbates the sinful nature of man and in order to do this it sets a very high standard for morality which eliminates the classical distinction between command and counsel (strict and loose duties). Such a distinction was the basis for limiting the intervention of government into the individuals’ private life. The absence of such a distinction does not oblige the state to intervene, but there is no generalized guarantee against such intervention. We are not arguing that Protestants cannot be liberals, but that they are not liberals in virtue of their religion and by moral principle.

First, we will give an outline of the discussion on the Protestant origin of human rights starting from Georg Jellinek going all the way to a recent defender of the theory in the person of John Witte. Many arguments have been compounded against the theory, but it is surprisingly tenacious. We will try to challenge the theory, as explained above, from a theoretical rather than a historical point of view, in order to show its incongruity. To do this we will discuss Luther’s conception of command and counsel and how this position reverberates in Protestant political philosophy and notably in such thinkers as Hugo Grotius and Samuel von Pufendorf. We will conclude with some consideration on the role of John Locke in establishing the liberal position of the 18th century declarations.

Protestant Origins of Human Rights

The idea that 18th century human rights could somehow originate in Protestantism was launched by Georg Jellinek in 1895. His dissertation, Die Erklärung der Menschen- und Bürgerrechte, Ein Beitrag zur modernen Verfassungsgeschichte, argued that Rousseau’s Contrat social could not be the source of The Declaration of the Rights of Man and of the Citizen adopted in France in 1789. He insisted that the model for this declaration was the American declarations and notably the Virginia Declaration adopted a decade or so before the French declaration. He argued further that freedom of religion in the American colonies was responsible for the idea to state universal human rights in a declaration. (Jellinek, 1895)

Jellinek is reacting to a view put forward by Paul Janet in his Histoire de la science politique (1887). Janet presents the declaration of rights as the very terms of Rousseau’s social contract. (Janet, 1887: 457) Jellinek argues that this could not be so, since Rousseau knows nothing about rights which individuals have before and independently of the state. In Rousseau’s state, individuals ony have those rights, which emerge from the general will. (Jellinek, 1895: 5) Jellinek concludes that the declaration must have another source and he finds it in the American declarations. He notes that such a declaration was demanded in the Cahiers de doléance and the first one was proposed by Lafayette, a war hero from the American War of Independence. He notably points to the Virginia Declaration (1776) as model for the French declaration, but he compares the French declaration carefully with several American declaration and concludes that both ideas and form derives from the American declarations. (Jellinek, 1895: 7-22). Emile Boutmy responds vigorously in the Annales des sciences politiques (1902 – Georges Fardis translated Jellinek’s dissertation into French that year, see Jellinek, 1902). These two points have, however, been conceded by scholars by now. (Rials, 1988: 352, 357; Gauchet, 1989: 14; see also Joas, 2003: 258-260)

He then asks how such ideas about declaring universal human rights came to the Americans and notes that they could not come from England, where only English rights were proclaimed. He also excludes natural law which, he says, had no problem approving slavery and such things. (Jellinek, 1895: 30-31) His own solution is to find the origin of such rights in the assertion of universal religious tolerance and freedom of thought. The first Protestant settlers refused ecclesiastical hierarchy and considered the church as a community of believers. Jellinek sees herein the seeds for a democratic polity. Since the individual believer had to relate directly to God without any hierarchical middle ways, Protestantism also emphasized individualism, and from this, he thinks, unlimited freedom of thought followed, which in its turn had to be proclaimed as a universal right. (Jellinek, 1895: 31-41) From this initial right several political rights came along. (Jellinek, 1895: 43) This relation between freedom of thought and political freedom was already noticed by Madame de Staël in her posthumous work on the French Revolution. (de Staël, 1871: 61)

It is not clear, however, neither in Jellinek nor in de Staël, how we get from the one to the others. Considering that Frederick II of Prussia, reportedly, could say, ”Argue as much as you will and about whatever you will, but obey!” (Kant, 1996: 18) without any apparent contradiction, the relation must be a rather loose one. For de Staël it is the free enquiry which leads to representative government. (de Staël, 1871: 61) It supposes that free enquiry in one area would lead to free enquiry in all areas and this would somehow make people think that they should have a say in political affairs. Jellinek emphasizes the absence of ecclesiastical hierarchy and religious individualism as decisive, and he seems to assume something similar, since specialization of other freedoms would somehow crystallize themselves around freedom of thought. (Jellinek, 1895: 43) Joas states frankly that the other rights do not emerge organically from freedom of religion, but he still wants to give it some preeminence as the foundation of the entire constitution. (Joas, 2003: 263)

Whatever the relationship might be between freedom of thought and religion and the other rights of man, it will lose much of its significance if Protestants showed little interest in religious freedom and tolerance. On this point Jellinek receives criticism from Ernst Troeltsch, who argues that Protestants churches had little such interest, while certain Protestant sects were more serious about religious freedom. Calvinism, which was the dominant Protestant denomination in the Colonies at this time, did only accept a limited kind of tolerance. According to Troeltsch, full acceptance of other religions was only embraced by spiritualists like the Quakers, Baptists and Roger Williams. They were the only one who could conceive freedom of thought and religion as an inborn human right. (Troeltsch, 1923: 758 ff.) Jellinek takes account of this in the second edition of his work, but insufficiently, Troeltsch suggests. He would attribute a much larger importance to Enlightenment thinkers. (Troeltsch, 1923: 764-765 see the note.)

In fact, religious toleration was rather limited in the American colonies. Troeltsch notes that the New England Puritans wanted free religious communities and forced no one to enter the church, but they did not tolerate any other church or denomination and important citizen’s rights was conditioned on membership of the church. (Troeltsch, 1923: 759) Ralph E. Pyle and James D. Davidson present a schematic overview regarding toleration of dissent and restrictions on citizens’ rights in 17th and 18th century colonial America. In most cases there is no toleration of Catholics. In some cases nonconformist, Quakers and Baptists are not tolerated. Office-holding and voting rights was nearly always denied Catholics and often reserved for a particular denomination or more generally for Protestants. (Pyle & Davidson, 2003: 66-68) More colourfully, Kenneth C. Davis denounce what he calls the myth about religious tolerance in colonial America. The Puritan fathers did not tolerate opposing views. Dissidents such as Roger Williams and Anne Hutchinson had to leave. Catholics and other non-Puritans had to leave as well. He recounts the misfortune of four Quakers who were hanged in Boston in 1659-1661 for insistingly returning to the city. Catholics were discriminated against regarding property and voting rights. As late as 1834 a Catholic convent was burned to the ground by an anti-Catholic mob. In the 1844 Bible Riots in Philadelphia two Catholic churches were destroyed and two people died. In the same period Mormons were also victims of persecution and massacre. (Davis, 2010)

Some states, however, did exercise a rather general tolerance; like Rhode Island, founded by Roger Williams, and Pennsylvania, founded by William Penn, a Quaker. In the first everybody was tolerated, but voting and office-holding was reserved for Protestants. In second all monotheists were tolerated, though Catholics were not tolerated for a short period. They were nonetheless excluded from office until 1776. (Pyle & Davidson, 2003: 66-68) These were the communities which according to Troeltsch and later on Jellinek saw as the champions of a human right to freedom of thought and religion. To this Gerhard Ritter answers that it is not possible to trace the human rights declaration of 1776 in Virginia to the demand for religious tolerance in the American colonies. The 17th-century charters from the founding of the colonies do not show any general human rights. They are about royal privileges and traditional English freedoms. They suppose the colonies to be essentially Christian communities. He adds that the article on freedom of thought was a latecomer to the Virginia Declaration and not without resistance from the tenants of state churches. (Ritter, 1949: 240) To this, Hans Joas adds that a staunch defender of religious freedom such as Thomas Jefferson was a Deist and no direct heir to Puritan thought. (Joas, 2003: 262; see also Davis, 2010) As Troeltsch suggests, Enlightenment thought is probably a more likely source of Jefferson’s commitment to this cause.

At this point one would say that this discussion is by now long dead and buried, but somehow phantoms are still hanging around refusing to disappear. Valentine Zuber gives a useful outline of how Jellinek’s ideas were received by French Protestants. (Zuber, 2014) The commemoration of the 400 years of the birth of Jean Calvin in 1909 was a great occasion to link the rights of man and the citizen directly to Calvin. Emile Doumergue proclaims that the Declaration of the Rights of Man and the Citizen comes neither from America nor England, but, first of all, from Calvin’s French disciples and Calvin himself. (Doumergue, 1910: 22-23) The position is argued in more detail by Jules Emile Roberty. He believes that ideas about human rights should be traced back to the Huguenot disciples of Calvin generally referred to as the Monarchomachs. They defended, according to him, the rights of the people against absolute rulers. They were defeated in France, but their ideas poured into Puritan thought in England and travelled with them to America, and they travelled back to France at the time of the American Revolution. (Roberty, 1910: 33-39) This connection between Calvin and human rights is greatly nuanced by Roger Mehl writing in 1978. He admits that neither Luther nor Calvin took any special interest in human rights. On the level of discourse such a connection is not discernable, but he thinks it can be made at the level of events. The fact that the Reformation broke the unity of faith that had hitherto existed, leads, according to him, to freedom of thought and therefrom to the other rights. (Mehl, 1978)

Mehl is not prepared to admit that Protestantism had no special relation to human rights. We are left with the idea that freedom of thought and religion, which was caused accidentally by the Reformation, is some kind of paradigmatic right from which the other rights are created by analogy. John Witte, writing in 1998, take up the same idea and go as far as to describe the Reformation as a human rights movement. (Witte, 1998) He pursues the same program in more nuanced ways in his 2007 book on The Reformation of Rights, Law, Religion, and Human Rights in Early Modern Calvinism. (Witte, 2007) We will try to dispel these phantoms of a long-deceased theory with a different kind of argument, which, in our view, grips the problem by its roots. Approaching the matter from the concept of rights itself, instead of emphasizing particular rights which might have had more or less prominence in various Protestant writers, will make clear that core tenets of Protestant theology is incongruent with the concept of rights deployed in the 18th century declaration of rights.

The Concept of Rights in the 18th-Century Human Rights Declarations

However important Huguenot writers were for developments in England and later on in America, the notion of rights had been developed to a much higher technical level in earlier scholastic tradition, and thinkers on both sides of the Channel could draw on this tradition. William of Ockham and Conciliarist thinkers like Pierre d’Ailly, Jean Gerson, John Mair and Jacques Almain employed a permissive notion of rights developed by the canon lawyers of the 12th century. (Jacobsen, 2011: 169-176, 189-199, 125-128) The permissive conception of rights equal rights with permissions, such that permissions presuppose duties. We are permitted, in the strict sense, to do everything which is not commanded or forbidden. If no duty commands us to take a walk in the park at this particular moment and there is no duty forbidding us to do so, then we are free to do it. We can do it or not as we like. This is permission which is also called a right. Upon this basis the above mentioned writers construct a consensus theory of government. Since there are no duties concerning property and government (at least after the Fall) these matters must belong to the area of permissions and people would then have to agree about how to settle these matters. They agree to share up the common property and to institute judges and governors. This scheme probably had as its purpose to bolster up the secular power against the Church. Having an independent legitimization in consent and its own area of competence, the secular power could avoid being a subsidiary of the Church. What Huguenot writers did as something rather new was to turn the very same scheme against the secular power (although John Mair had already done something similar in a Scottish context). However, the Huguenots did this opportunistically, and as soon they got one of their own on the French throne in the person of Henry IV they returned to the principle of authority.

Ockham and the Conciliarist writers had the idea, common in theological thought at the time that one should distinguish between mortal and venial sin. Only mortal sin should be enforced by the secular power. To mortal sin corresponded a limited number of duties such as not to kill, rob, etc. The result was that the secular state had limited functions, and seen from the perspective of the secular power the individual had a very extensive liberty. Everything not within the sphere of the secular power was left to the individual or the discipline of the Church. The Church had a huge social power, of course, but at the time it was exercised rather leniently. The secular power therefore left the individual with a large free space in the form of permissions. This is exactly what the18th century declarations of rights do as well. They are centred on freedom. They limit the functions of the state and create a space of liberty where the individual is free to do as he pleases. The right to publish one’s opinions (freedom of the press) limits the way the state can intervene in this kind of activity and permits the individual to exercise the very same activity. He is not obliged to do so; it is an option he has to be used in case he wishes to do so. (Jacobsen, 2011: 271-278, 281-286)

In order to delimit the sphere of the secular power, we would need a way to distinguish between duties which are enforceable by the state and other kinds of duties. Augustine of Hippo spoke about command and counsel, while modern philosophers would speak about strict and loose duty. More elaborate distinctions between duties were also possible, Gerson thus distinguished between the prescriptions of justice with strong obligation incurring mortal guilt and eternal death, lesser prescriptions with little obligation such as to honour one’s parents, slight obligation such as to observe good manners and the smallest obligation concerning perfection. (Gerson, 1706a: l. 5, c. 61-63) Only the duties of justice were enforceable by the state, while the others were considered too difficult to ascertain precisely or too demanding for ordinary man. Gerson, and his fellow theologians of the Sorbonne, had a rather forbearing attitude to human frailty. This would change radically with Martin Luther, and at the same time he renders useless the distinction which made it possible to establish for the individual a guaranteed sphere of freedom.

Martin Luther[1]

Luther does not as such abolish the distinction between command and counsel, but he only acknowledges one counsel, namely celibacy. According to the ordinary understanding of the distinction, counsels are about these things Christ teaches in Matthew 5: not to take revenge, not to return evil with evil, not to be litigious, giving one’s coat when one’s tunic is taken, turning the other cheek, going another mile with the person who obliges you to go one mile, not to resist evil persons and to be benevolent towards your enemies. In Luther’s view all this was not counsels, but commands. (Luther, 1889: 580-581) Among the counsels the ordinary view also adds poverty, obedience and celibacy. Luther reinterprets poverty spiritually as detachment from worldly things and saps the basis for monastic life. Obedience is evangelical obedience and incumbent on everyone. Only celibacy survives, since both Christ and Paul expressly praise celibacy. Celibacy, however, does not make anybody perfect, but can be advised for other reasons. (Luther, 1889: 583-644)

What Luther is saying is that the limits imposed as sufficient for salvation has been set too low, for what is in reality commands has been interpreted as counsels. The traditional view considered only the transgression of the duties of justice as a mortal sin barring one’s way to heaven. This is clearly expressed in the censure of Luther’s work by the theologians of the Sorbonne. If the duty not to revenge oneself was not just a counsel, but a command the Christian law would become too burdensome. (Luther, 1889: 592-593) This is uninteresting for Luther for he is not concerned with the accomplishment of the commands, but they should instead reveal our impotence and drive us into the arms of Christ. Only faith can save us and faith is a free gift from God. The utter impossibility of the commands should disclose for us how profoundly sinful we are and make clear for us that only God’s grace can save us. (Luther, 1889: 208-209, 211; Cristiani, 1946: 74)

This stress on human sinfulness and our inability to overcome it by our own means is a key feature of Protestant theology and this feature has some interesting consequences for political philosophy. Luther is not saying that the commands should not be accomplished, but any attempts to do that will fail if it is not guided by faith. Those who have faith will have no need of the law; they will accomplish the law spontaneously. There are, however, few such people, so the law has two functions. It should show us how incapable we are to fulfil the law perfectly thus making us humble and receptive to God’s message. The other function is restraining keeping all those who are not true Christians, that is the majority, from doing evil deeds. This second function belongs to the secular power, and it should preserve peace, punish sin and restrain evildoers. (Luther, 1889: 606-608; 1888: 213-214; 1900: 253-268) We must assume that sin is here understood as the external breach of the commandments, since the secular power only rules over the external affairs in this life such as the life and property of persons. This power cannot command us to believe something in particular, since people’s beliefs are out of its reach. (Luther, 1900: 262-268)

This would suppose a distinction between those prescriptions which can be enforced and those which cannot, such as believing or being generous. The enforcement of the secular power should preserve peace and repress sin. In some sense this is not very different from what the Parisian doctors would say, but in between the notion of sin has changed. Luther renders the notion of counsel utterly useless and eliminates at the same time the distinction between mortal and venial sin. (Holl, 1932: 211) There being no distinction between mortal and venial sin, all sins, at least in their external expression becomes punishable by the state. Before, sin, that is mortal sin, was a minimal standard for salvation. Now, sin is a much more demanding notion. We would then expect the Protestant state to be much more invasive, while the Sorbonne theologians would be much more lenient and indulgent towards human frailty. Luther actually castigates in this spirit the existing Church for laxity. They do not preach, teach, forbid or punish anything. He insists that the spiritual power should punish and correct adultery, indecency, usury, greed, worldly luxury, unnecessary dress and the like with excommunication and legal measures. (Luther, 1888: 255) Max Weber notes something similar when he says that the Reformation did not do away with ecclesiastical power. It replaced a formal, but in fact barely sensible domination, with an extensive domination penetrating into both the domestic and public domains in order to regulate the whole conduct of life. (Weber, 1999: 20) According to Troeltsch, Lutheranism left it to the secular power to exercise this control, while the Calvinist congregations exercised this control themselves. (Troeltsch, 1923: 629)

Protestant Political Philosophy

This more invasive state is also recognizable in Protestant political philosophy. Even though the distinction between command and counsel returned to prominence it was considerably reworked. A distinguished Protestant political philosopher is Hugo Grotius. He adhered to Arminianism, an outgrowth from Dutch Calvinism. Arminians maintained that only faith could save, but allowed man some freedom to accept or reject God’s grace. However, this does not save man from total depravity. The difference from orthodox Calvinism lies only in the remedy for this depravity. In spite of this slightly more lenient position, Grotius maintains the overall position outlined by Luther. All in all Grotius presents a political philosophy compatible with a rather illiberal society.

Grotius adopts a permissive conception of rights. These rights are permissions seen from the perspective of a range of duties. (Grotius, 1646: I.1, 3-4 II.2-3, 20, III.4, 10) These duties can have different origins. Some originates in natural law as inherent in man’s social nature. Others depend on divine will and originate in divine positive law. (Grotius, 1646: Prol. § 6-9) Other again stems from human or civil law established by the social contract. Just as they can enter the social contract they can also oblige themselves further by particular contracts. (Grotius, 1646: Prol. § 16-17, 40; II.15 vi.1 p. 265) These different origins of human obligations relate to each other a bit like Russian dolls. The innermost duties of the natural law leave a certain space of freedom to individual man, but divine positive law can restrict this freedom further (without contradicting the duties of the first law). The remaining space of liberty can, however, be further restricted by human law and particular contracts. What is important to notice here is that there is no limit to how this freedom can be restricted.

Grotius does distinguish between different kinds of duties, but this does not lead to any important limits on state power. He does exclude people’s beliefs and virtues such as generosity, gratitude and compassion from public enforcement as far as they are inner states. (Grotius, 1646: II.20 xx.1 p. 329) He does distinguish between justice, strictly speaking, which can be exercised between equals in the natural state and duties which can only be enforced by a superior in a state. These duties are self-regarding virtues and charity and both of them can be enforced by the state. (Grotius, 1646: II.25 iii.2-4; I.2 i.3 p. 16) He emphasizes that the state could use amendatory punishments in order to make people better, and he mentions an example from the Locrian Code where someone was punished for drinking wine against the prescriptions of the doctor. (Grotius, 1646: I.1 ix.1 p. 3-4) He is not saying that they should always do this, but there is clearly no general limit that would bar the state from doing it.[2]

This position does not change very much when we consider a Lutheran political philosopher such as Samuel von Pufendorf. He espouses the same permissive rights. He explains that some things are lawful or indifferent things, and as such they are a medium between commands and prohibitions, but he specifies that they are not like lukewarm water, which partakes in both hot and cold. The indifferent should be distinguished from good and bad and does not partake in any of them. Indifferent actions are optional and can be performed as one pleases. The laws permit what is neither commanded nor prohibited, and in this way it defines a general liberty modifiable by new laws. (Pufendorf, 1716: I.2.9; I.4.7-8; I.3.14; I.7.2; I.6.15)

He distinguishes between perfect and imperfect obligation. The first kind of duties is necessary for the very existence of society, while the others only contribute to its well-being. The first can be asserted by force, while the second cannot, and he mentions piety, reverence, gratitude, humanity and beneficence. (Pufendorf, 1716: III.6.10; I.1.19; I.7.7-8) It seems like the first kind of duties is enforceable in their own right even outside the state, while other kinds of duties like assisting people in need, which is only obliging imperfectly, can be enforced by the state and then turned into a perfect obligation. (Pufendorf, 1716: II.6.5-6) He explains that law is not only about strict justice incurring perfect obligation, but also concerns the self-regarding virtues, and that is the reason why laws are often made against drunkenness, sumptuousness and the like. In this way many duties imposing only imperfect obligation are strengthened by laws. (Pufendorf, 1716: I.6.4; III.3.8) [3]

We have here the same general scheme as with Grotius. We are obliged to all virtues by universal justice and everything outside the mind is in principle enforceable by the state. Some duties suppose a particular attitude, such as generosity, and cannot as such be enforced, but the external part of it, namely helping the needy can very well be enforced by the state. However, some duties are such that they can be upheld in the state of nature, and they are inherently perfect, while other (external) duties can only be perfect in virtue of the state. The distinction between enforceable and non-enforceable duties now turns only on the external and internal side of the duties, such that only the attitude is inherently out of reach of the state. The distinction we found with the Sorbonne theologians did not operate uniquely on this count, but delimited materially the proper functions of the state, such that a large amount of external behaviour was out of reach of the state.

John Locke subscribed to this view as a young man (Locke, 1967) but later he made an important move which somehow returned the situation to the time of the Sorbonne theologians. Locke reintroduced the distinction between strict and loose duties such that the functions of the state were limited materially. (Locke, 2006: 140-144, 283, 235, ; 1870: 14, 29; King, 1830: I p. 206-215) The context was, of course, different now. The huge social power of a unitary Church had disappeared, and this added a new dimension to freedom. It was the life, property and freedom, religious freedom included (to some extent) that should be protected against the state, and not the state against the ecclesiastical power. Like many of his contemporaries he had moved away from salvation from faith alone and embraced some version of work righteousness. (Baker, 1985: 129-130, 133) We are not suggesting that work righteousness was the cause of this move, but Locke did no more have a theology which would impede such a move. The reason probably has to be found in the political context of the time.

Conclusion

In order to highlight human sinfulness Luther set the bar much higher. The prescription of the Sermon of the Mount (Matthew 5) is not taken as two levels of obligation, one for ordinary people, and one for the perfect. We should never take revenge, never return evil with evil, never be litigious, always give one’s coat when one’s tunic is taken, always turn the other cheek, always go another mile with the person who obliges you to go one mile, never resist evil persons and always be benevolent towards your enemies. In fact, we should not even think about doing evil things. Clearly, no one is able to do this, and this is exactly Luther’s point. However, in setting the bar at such a high level, he also abandons the individual to the secular power which is entrusted with the task to ensure the external compliance with this ideal. We no longer have any other criteria for limiting the extent of the secular power. This is the price to pay for exacerbating human sinfulness. This appears as a core element in Protestant theology, and this would bar Lutheranism, Calvinism, Arminianism, most Baptists and other Protestant denominations subscribing to the total depravity of man, from establishing general material limits to the secular power. The only distinction they could make was one between belief as something of the mind and other matters, and this could lay the foundation for freedom of religion, as it did with Roger Williams, but this would still leave the high moral standards to be enforced, thus making a more invasive state possible. It is difficult to see how the other freedoms could be produced by some kind of gemmation from religious freedom. We are here far from the liberalism of the 18th century declarations. They left moral matters out of the realm of the state.

One might object that the Quakers were a special case, challenging the notion of total depravity, but they are, on the other hand, notoriously uninterested in theoretical questions, and therefore an unlikely candidate for having developed the theoretical language of universal rights. Even though they are an outgrowth of Calvinism it is disputable to which extent they are Protestants. What we have tried to argue here is that core Protestantism is an unlikely originator of universal human rights in the 18th century sense. It does not caution an extensive space of liberty as they do.

Bibliography

Baker, J. Wayne (1985). “Sola Fide, Sola Gratia: The Battle for Luther in Seventeenth-Century England”, The Sixteenth Century Journal, Vol. XVI, No. 1: 115-133.

Boutmy, Emile (1902). “La Déclaration des droits de l’homme et du citoyen et M. Jellinek”, in Annales des sciences politiques, IV (July 15): 415-443.

Cristiani, Léon (1946). “Luther et la Faculté de théologie de Paris”, Revue d’histoire de l’Église de France. Vol. 32, No. 120: 53-83.

Davis, Kenneth C. (2010). “America’s True History of Religious Tolerance”, in Smithsonian.com (October). URL.: http://www.smithsonianmag.com/history/americas-true-history-of-religious-tolerance-61312684/?no-ist (Consulted 30/09/2016)

De Staël (1871). “Considérations sur les principaux événements de la Révolution française”, in Œuvres posthumes de madame la baronne de Staël-Holstein. Paris: Firmin Didot Frères.

Doumergue, Emile (1910). “Calvin, un grand Français”, in Fête Commemorative du Quatrième Centenaire de Jean Calvin, Matinée Littéraire et Artistique célébrée dans la Grande Salle des Fêtes du Trocadéro. Paris.

Gauchet, Marcel (1989). La Révolution des droits de l’homme. Paris: Gallimard.

Gerson, Jean (1706): “Vita spirituali animae”, in Opera omnia, Vol. III. Antwerp: Ellies Du Pin.

Grotius, Hugo (1646). De iure belli ac pacis libri tres. Amsterdam: Johannes Blaeu.

Holl, Karl (1932). “Der Neubau der Sittlichkeit (1919)”, in Gesammelte Aufsätze zur Kirchengeschichte, Vol. I Luther (6th ed.). Tübingen: Verlag I.C.B. Mohr – Paul Siebeck.

Jacobsen, Mogens Chrom (2011). Three Conceptions of Human Rights. Malmö: NSU Press.

Janet, Paul (1887). Histoire de la science politique dans ses rapports avec la morale, Vol. II (3rd ed.). Paris: Felix Alcan.

Jellinek, Georg (1895). “Die Erklärung der Menschen- und Bürgerrechte. Ein Beitrag zur modernen Verfassungsgeschichte.” Staats- und völkerrechtliche Abhandlungen, I.3. Leipzig: Duncker & Humblot.

Jellinek, Georg (1902). “La Déclaration des droits de l’homme et du citoyen : contribution à l’étude du droit constitutionnel moderne”, in Bibliothèque de l’Histoire du Droit et des Institutions. Paris: Albert Fontemoing.

Joas, Hans (2003). “Max Weber und die Entstehung der Menschenrechte, Eine Studie über kulturelle Innovation”, in Das Weber-Paradigma, Studien zur Weiterentwicklung von Max Webers Forschungsprogram. Tübingen: Mohr Siebeck.

Kant, Immanuel (1996). Practical Philosophy. Cambridge: CUP.

King, Peter (1830). The Life of John Locke, with extracts from his correspondence, journals, and common-place books, vol. 1-2. London: Colburn & Bentley.

Locke, John (1870). Four Letters on Toleration. London: Ward, Lock, and Tyler.

Locke, John (1967). Two Tracts on Government. Cambridge: Cambridge University Press.

Locke, John (2006). Political Essays. Cambridge Texts in the History of political Thought. Cambridge: CUP.

Luther, Martin (1888). “Von den guten Werken” (1520), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 6. Weimar: Hermann Böhlau.

Luther, Martin (1889). “De votis monasticis Martini Lutheri iudicium” (1521), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 8. Weimar: Hermann Böhlau.

Luther, Martin (1900). “Von weltlicher Oberkeit, wie weit man ihr Gehorsam schuldig sei” (1523), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 11. Weimar: Hermann Böhlaus Nachfolger.

Mehl, Roger (1978). “La tradition protestante et les droits de l’homme”, in Revue d’histoire et de philosophie religieuses, Vol. 58, No 1: 367-377.

Pufendorf, Samuel von (1716). De jure naturae et gentium libri octo. Frankfurt am Main: Friedrich Knoch & Söhne.

Pyle, Ralph E. & Davidson, James D. (2003). “The Origins of Religious Stratification in Colonial America”, in Journal for the Scientific Study of Religion, Vol. 42, No. 1 (March): 57-76.

Rials, Stéphane (1988). La Déclaration des droits de l’homme et du citoyen. Paris: Hachette.

Ritter, Gerhard (1949). “Ursprung und Wesen der Menschenrechte”, in Historische Zeitschrift, Vol. 169: 234-263.

Roberty, Jules Emile (1910). “La Réforme française et les ‘Droits de l’Homme’”, in Fête Commemorative du Quatrième Centenaire de Jean Calvin, Matinée Littéraire et Artistique célébrée dans la Grande Salle des Fêtes du Trocadéro. Paris.

Troeltsch, Ernst (1923). “Die Soziallehren der christlichen Kirchen und Gruppen”, in Gesammelte Schriften, Vol. 1: Tübingen: J. C. B. Mohr.

Weber, Max (1999). Die protestantischen Ethik und der Geist des Kapitalismus. Potsdam: Institut für Pädagogik der Universität Potsdam. URL: http://nemendafelog.hi.is/Gaia/Articles/Protestantische_Ethik.pdf

Witte, John (1998). “Law, Religion, and Human Rights: A Historical Protestant Perspective”, in The Journal of Religious Ethics, Vol. 26, No. 2: 257-262.

Witte, John (2007). The Reformation of Rights, Law, Religion, and Human Rights in Early Modern Calvinism. Cambridge: CUP.

Zuber, Valentine (2014). “L’origine protestante des droits de l’homme, La controverse entre Georg Jellinek et Emile Boutmy et ses résonances dans le protestantisme réformé français (fin XIXe-début XXe siècle), in L’identité huguenote, Faire mémoire et écrire

 

Endnotes

[1]            This and following sections reproduces ideas presented in chapter 8 of Jacobsen, 2011.

[2]           For a more detailed interpretation, see Jacobsen, 2011: 216-225.

[3]           For a more detailed interpretation, see Jacobsen, 2011: 225-233.

Brexit Coup d’Etat: Tracking the Overthrow of EU Rule of Law in Britain

Historical Note

This analysis was researched and written days before the snap June 8 UK election which was about to lock in the electoral minority of the ‘Brexit referendum’ with no public understanding of the immense historical stakes and dominant powers involved behind the political scenes. Least of all recognised was that the hard Brexit led by the now minority-government Tories allows massive de-regulation of the most powerful transnational private financial and agri-food interests in the UK and the EU. Yet no sooner had I completed the body of the following analysis than the London terror attack struck on Saturday night June 3, with PM Theresa May pointing at all opposition who sought causal understanding of the terrorist attacks as showing “far too much tolerance”.  The first pages of the analysis below bring this pre-election turn of events into explanation of the slow-motion ‘Brexit coup’ that continues today before it is fully understood. While the June 8 2017 election turned against the Tory-May government as anticipated by this June 5 diagnosis in media res,  the global struggle for life-protective law still remains under more systemic threat than since 1945. The purpose of this publication (the article has  been published widely in post-election form) is to share with fellow scholars how thinking-through within the immediacy of events can make an historic difference before a managed turning point of history is instituted into a no-turning back de-regulation attack on life-protective laws and common life assets to serve only very powerful financial interests with the public and opposition kept blind to, in fact, the biggest single attack on the civil commons of Britain in its history.

 

In the Midst of the London Terror Attack

It is June two days before the snap June 7 UK General Election is set to lock in a referendum to leave the European Union unsupported by a vast majority of British voters and – with little or no notice – reversing 50 years of evolved financial, labour rights and environmental regulations. These little discussed facts are spelled out in depth ahead. All the dots are joined from the start of the Leave campaign whose overthrow objective, strategists and behind-the-scenes money and interests are only beginning to be known.

It might seem too late for British voters to do anything about it, but much that is unexpected has occurred since the snap election was called and whited out in the press until recent days. The 24-point lead for new PM Theresa May and the Tories over grass-roots Labour and Jeremy Corbyn long seemed a sure thing, and so it was planned. But the lead has collapsed towards less than a few points and still dropping.  Then the London terrorist massacre on Saturday night June 3 struck on cue. For the public was awaking to the dressy mock-up Margaret Thatcher, and the rising Jeremy Corbyn opposing her is a near unique leader in British politics – an honest man based on a grass-roots movement for workers and the poor.

 

 

The Corbyn Labour Threat

Corbyn is not only honest, which none have denied. He has showed himself over a year capable of standing up to a non-stop corporate media barrage of official loathing. He has not backed down from the near public ruin of his grass-roots movement in which war-criminal Tony Blair and his ‘New Labour’ ilk have led in trying to sabotage his movement – barking out front, ostentatiously resigning from cabinet, tearing apart the reclamation of the Labour Party from the corporate boardrooms where it had become Blair’s Murdoch-press lap-dog and a neo-liberal shell. The reason Corbyn was and remains an enemy of the ruling castes in the media, politics and the boardrooms is that he unapologetically stands for traditional socialist values. His program is not contaminated as almost everywhere else by trendy post-modern culture, saucy relativism and politically correct diversions from economic life substance. Even worse to official media-and-political culture and its submergence in capitalist globalization with no alternative, Corbyn and his politically grounded movement actually stands for British workers’ interests, the public sector, social services, and environmental safeguards as developed within the European Union – all of which are on the chopping block now in Britain and across the world.

 

 

The Ruling Agenda

The problem is that majority of citizens in the world support these long-developed and popular social infrastructures and life standards. So the only way of continuing to defund, privatize and erase them is by pretending there are much more modern and flexible marketable versions for corporate and bank profit. One way or another, and there are many ways, this process consists in historical reversal and laying waste to over a century of social evolution and life standards as the ruling agenda of establishment political parties in power. This hidden agenda has increasingly spread and ruled the world. All the degenerate trends of extreme inequality, private money power over all, rising youth unemployment, pervasive state corruptions, massive dispossessions, override of long-established workers’ rights, and multiplying ecocidal production and products stem from it.  The vast profile of one-way degeneration of social systems across borders is, however, never connected across the dots by corporate media, states or the academy itself. Rather the underlying agenda euphemized as ‘globalization’ is put on fast-forward.

 

 

New Right-Wing Nationalism is Another Brand for the Same Hidden Agenda

It may seem that the erupting new ‘nationalist’ movements in US and Britain, Eastern Europe and Russia, and so on, are the great swing back against corporate and bank globalization. This is the Great Illusion of our time. What is hardly yet seen is that, in fact, these ‘nationalist’ movements, as in Tory Britain or Trump US racing ahead today, do nothing to connect or to solve any of these life-and-death social system problems and the cumulative pollutions and razzings of organic, social and ecological life organization across the globe. They are only a speed up of the global eco-genocidal processes under new operations and pretexts of new national recovery and freedom. Yet always the same transnational corporations and banks make even more money than before, mostly from transferring public wealth to themselves by vast tax-cuts, increased subsidies, steep cut-backs on social services and spending, and elimination of everything that is not needed for short-term profit cycles. Of course the opposite is pretended in many ways varying with cultures, but always good for the working people. Still, one can always tell the real agenda by whether or not the ecocidal processes and products are effectively ruled out rather than accelerated in fact, and whether or not societies are so governed that more citizens become better off in life work security and free development rather than the opposite in fact.  This is where the facts as opposed to pervasive system rhetoric and claims show systemic degeneration and dispossession in human and ecological life terms. Seek exception in scientific fact. Seek anywhere that Tory (or Republican) rule meets even one of these problems rather than diverting from them in endless ways – most of all today, by Islamic terrorists. They are the ever-recurring Enemy to be waged war against – and typically is when the popularity of the ruling party is dangerously in question.

 

 

London Terror Spectacle 5 Days before Election as Brexit-Tory Polls Collapse  

The June 3 massacre of innocent and unarmed Saturday revellers on iconic London Bridge and Borough Market came at such a time. PM Theresa May and Tory party polls for the snap June 8 national election were in free fall as Corbyn Labour support unexpectedly and dramatically rose by over 20 points from the surprise Spring date that the new and secretively advised PM May had called against all prior commitment and earlier schedule of May 7 2020. Although only 7 people died – in Moscow at the same 9 people were murdered without much notice – the absolute panic of the central city of London and Europe was unprecedented.  A white van ran over people on London Bridge’s festive and pub-crowded Saturday night, and many were seriously injured – though fewer than in US drone or air strikes happening in Arab countries on a regular basis. The modus operandi was quintessentially monstrous in action. It could have come from an ISIS video – of which there has been many with no evident interruption by the immense counter-terrorist operations, advanced electronic capabilities, and ever-rising budgets for war upon ISIS terrorists.  The three soon-dead men were maniacal as if drugged, but no drug tests were ever reported. They not only viciously ran over as many people as they could with the signature white ISIS van in the 10 PM Saturday night happy hour, but they leapt out of this careening kill van with long Arab stabbing, cutting, slitting throats, multiply stabbing one young women, and – in short embodying the most murderous nightmare conceivable on all in London and around the world soon watching the globally televised aftermath including the dead bodies.

 

 

The Most Basic Questions Are Never Asked

Strangely, the suicide murderers wore fake suicide vests, never explained. Certainly the theatrical touch fitted the stereotype for both sides. Yet no-one in all the total coverage everywhere ever mentioned the abundant evidence of US-led funding, arming and orchestration of ISIS – although the mystery still remained of how their original appearance in spanking-new white vans lined to the horizon waving machine guns could have escaped the notice over the endless parade in a highly surveilled open desert area not far from Israel’s borders. In any case, the horrific downstream event and mysterious origins and orchestrated funding, training and arming of the very same terrorist organization perpetrating one atrocity after another with uninterrupted e-video broadcasts and propaganda over years were all unmentioned in all the allied analysis from the major networks across the globe. Only the international outrage and absolute denunciation pouring in and out from every quarter continued around the clock for days all the way to the two days left before the election. Since the main question was and remains how to stop these horrible terrorist spectacles, there was no time for causal analysis. There never is. Somehow the evidentiary matters of including who funded, armed, trained and orchestrated the terrorists are never investigated by those who report on and benefit from the terror attacks. Somehow the terrorists’ very accessible propaganda, videoed columns of ferocious operatives, internet movies of killings, and strange coincidence of attacks with falling popularity of state leaders are not connected by anyone in official society or mainstream media or even scholarly journals.

That all this has kept happening from years ago in full view of television and internet audiences around the highly militarized Western world is not an issue which is publicly raised. Even when the murderous terrorists have been known and identified immediately afterwards, from the 9-11 bombings on, still there are no questions in the pervasive media coverage of the events, including in the June 3 London massacre. How they were and are identified so very quickly, even after such an historic surprise attack as 9-11 and even when the bodies of the alleged terrorists have been completely incinerated, how and why are these issues never mentioned?  Cui bono? – the first question of forensic justice – is never posed of anyone after the murderous terrorist spectacles. Failing parties and leaders who benefit enormously from such show-stopping distractions which put them in far more command of popular support and power than before the attacks, are never even slightly exposed to this question.  It is taboo to do so. Not even opposing politicians dare to ask the question. This gives us the clue to why all the other issues are not raised.  No such basic forensic question is ever posed because it cannot be publicly asked without every media of record accusing the questioner of folly or menace, thus perfectly diverting the issue again from the ruling taboo subject. There is no evident way through this closed circle. It is foolproof. So it follows that this is well known in ruling circles as well as by those interested in truth. Why would it not be used by a national regime whose public support is falling just before an election?

Free-Falling Tory and PM Polls and the London Terrorist Attack

Scientific hypothesis looks for disconfirming evidence more than confirming evidence in order to test it. This is why science works when it does. It takes all the relevant facts into account, forms an hypothesis, and tests it against the best possible counter-evidence.  (Corporate science and regime propaganda do the opposite. They look only for what confirms their claims to profit them. So coming just 5 days before the snap British general election which her regime called when it was 24 points ahead in the polls – now continuously falling days before election – this  regime has very good cui bono reason to re-set the polls upwards.  The known best way to do this with no questions asked is for a terrorist attack to occur on the regime. A terrorist attack usually guarantees a spike of citizen solidarity with national government, from France to Turkey to 9-11 Bush US. No-one dare pose the cui bono? Question in any case. It is known that a grisly terrorist attack, and a strong condemnation of it from the regime in power, along with allied regimes in unanimity, will produce a significant rise in the next poll. In this case, the poll of the June 8 British general election comes less than 5 days later.  This does not mean that the front political leader, now – PM Theresa May, the longest Home Affairs minister in memory, plans the terrorist attack, or even knows about it. It would be better that she did not, so as to carry through without compromise or leak. But she knows the territory of Home Affairs very well and the dark state’s capabilities, as well as British public opinion over many years as a cabinet minister.

If her polls are suddenly collapsing, as the polls of the long-belittled Labour leader Jeremy Corbyn rise just as fast, it makes very good sense for her regime to find a terrorist attack incomparably useful just before the election. She can stand tall and resolute as the lead warrior of the British people, like Margaret Thatcher against the Generals of Argentina over the Falklands. But here the enemy is far more immediate, visibly evil and mass murderous before our eyes – the archetypal enemy of Islamic terrorism, threatening and murdering Britons inside the very celebrating centre of their most populous and globally popular city, spreading mass panic to thousands in a barbarously brutal killing and wounding rampage that no-one will ever forget. It also provides the ideal opportunity to excoriate the poll-closing Jeremy Corbyn and Labour, who can be insinuated into the terrorist menace by his connection of terrorism to past government actions.

 

 

PM May Leaps to Attack Democracy as the Unseen Brexit Coup Closes In

PM May has all the credentials and image to rise to this occasion, and to pull off what no-one has really yet seen –the greatest reverse of British social and environmental standards and law in history that is about to be locked in by the June 8 election. The half century of evolved EU workers’ rights, life-protective laws, and scientific environmental norms is about to be overthrown. The London terror massacre occurs on June 3 as Tory and PM May polls  relentlessly slide down and the turning-point snap election is just hours away. State authority is restored in a blinding flash of action. Police command people “to run for your lives and hide”. They  command people to lie down in the areas they control, and to hold their hands over their heads as they are herded in large obedient numbers. Loud explosions are heard all over the place where there are no terrorists, and it is only 8 minutes before the terrorists are all dead for all to see on TV. Dead men cannot speak. PM May is strict and aggressive to rally the masses against the Enemy – and to reverse the Labour opposition’s rising polls. Election campaigning is suspended. PM May accuses those who sought have causal   understanding of the terrorist attacks as showing “far too much tolerance”. She warns that there is “a new trend in the threat we face” – although there is none evident, except raising the indisputable facts of its causation, as Corbyn had done just before his polls began to overtake her. PM May scolds, “Enough is Enough”.  The same old circle of blame-the-enemy while doing nothing effective to stop it is redrawn deeper than before. But she darkly warns others that things “cannot continue as they are”. She suggests that “pluralistic British values” are at fault. She leaves the cause of the endless terrorist spectacles behind to accuse the free internet itself, demanding once again the new Tory policy of sweeping new state regulations across citizens and borders, rather than honing in on ISIS and other long scot-free channels. “There is”, she says, “to be frank, far too much tolerance of extremism in our country”. “So we need to become far more robust in identifying it”, she proclaims in police-state code, “and stamping it out across the public sector and across society”.

Public sector? Across society? Is this a declaration of war against those in the public sector who dissent from the program? Is this a foreshadowing of the social-sector stripping to come with the Brexit coup d’etat? Where does the attack end? It does not. There are no definitions, no criteria, no evidence. There only more insinuations of who must be labelled and stamped out as ‘too tolerant’. There are only more demands for more state powers diverting completely from every issue involved not only in terrorist killing, but in the end of EU rights and laws in Britain. Most of all and most profoundly, every word and position of PM May, the Tory party and the forces behind them have distracted from the ultimate geostrategic game afoot that the London terrorist spectacle has diverted from and covered up. What could the huge and unexamined stakes be here that none discuss? Who alone stands to benefit from every step since PM May was promoted?

 

 

Why Brexit?

There has been endless commentary on Britain’s “Stay or Leave the EU” referendum and the narrow victory of the ‘Leave’ side after 44 years of partnership in which Britain’s GDP, human and workers’ rights,  and environmental protections have only increased, and by far more than the US. Even in gross market money terms, the record is clear in fact. In a letter to the London Times one year ago, Oxford researchers Professor Sir David Hendry, Professor Doyne Farmer, and Dr Max Roser refuted with no reply the Leave EU campaign led by financial and political playboy Boris Johnson. “Since 1973, the  year in which the UK joined the EU, the per capita GDP of the UK economy grew by 103%, exceeding the 97% growth of the US. Within the EU, the UK edged out Germany (99%) and clobbered France (74%). The UK’s growth has exceeded the US while tracking it, even since the crisis of 2008”.

Yet Leave the EU still narrowly won the UK referendum a year ago with nothing to go on except propaganda, and its very dubious result is about to be cemented into British government and history by the June 8 election in 3 days. On every level on which we analyse this decision now being led by PM May and the Tory state, it is a fails every smell test. But the real motive force and private money-party interests behind it are all but invisible to the public – not only in Britain, but around the world. There is virtually no recognition that the snap June 8 election in three days is going to reverse every life-serving law and regulation that has lifted Britain up over half a century from the doldrums of the early 1970’s when Britain was regarded as ‘the sick man of Europe’ in economic performance. How could this happen?

To begin with the referendum itself, the original wording of the ‘Brexit’ referendum was (italics added) “Britain should remain in the EU – Yes or No”. Few observed that this framing of the Tory question appeals directly to the tidal wave of popular resentments that have built up against transnational trade treaties and mass immigration everywhere, Britain included. “Should remain” is re-set to “Leave” as the dominant choice in this negative social context with, in fact, no connection to life co-ordinates. On the surface, the visible movement of foreign-speaking cultures into everyday rural Britain for new benefits and low-wage competition with British workers has widely inflamed anti-passions, as anyone familiar with British culture knows.  The near daily featuring of Islamic ‘terrorist attacks’ has stigmatized the EU system along with such continuous disorders as the torturous financial ruin of Greece. Leave on the ballot in a mysteriously well-funded and media-captivated campaign triggered enough of a primordial anti-EU sentiment that a very slim majority was won. It did not matter that false claims and demagogic showmen were given immense publicity in the Leave campaign in which the most important issues were completely out of the discussion. Nor did it not matter that the Leave vote was mainly rural England, nor that remaining Scotland was thereby propelled into breaking up Great Britain itself. There were no editorials exposing the facts that the new-PM Theresa May had herself warned UK voters that Brexit was “dangerous” and could have seriously damaging effects on the economy, the security, and the survival of the United Kingdom.  There was no media memory that she had said that leaving the EU would be “fatal for the Union with Scotland” and that she had formerly proclaimed “as Home Secretary [that] remaining a member of the European Union means we will be more secure from crime and terrorism”. Nothing seemed to matter except the new fait accompli of Britain ending its half-century partnership in the European Union on the flimsy basis of a referendum for which the overwhelming majority of citizens did not vote or approve.

 

 

Minority Brexit Vote = Massive De-Regulation of Finance and Food 

No-one seemed to report that this Leave vote itself (17, 410,742) represented only 37% of the total electorate (46,500, 001) as enumerated by the Electoral Commission. No mainstream media featured the 12, 948,018 voters left out of the count, over two-thirds the number of those who voted Leave. Only one source clearly reported that those whose votes were not cast in the single June 23 event voted 2:1 against leaving once the results were known (cf. http://blogs.lse.ac.uk/brexit/2016/10/24/brexit-is-not-the-will-of-the-british-people-it-never-has-been/). Most deeply and unspeakably, there was no hint of media attention to the first question of forensic inquiry, cui bono or who stands to gain most from British government leaving the European Union all its common regulation? Even up to June 2,  no-one has joined the dots that show the Leave EU referendum and vote has been an ideal political bludgeon to force Britain’s departure from the historical European Union just as its long-evolved Directives are in the process of enforcing policies and regulations on all-powerful London private banks and finance, and on industrial Big Agriculture and GMO-contaminating crops and fake foods . What no-one has evidently understood is that Brexit ensures that the very same dominant financialization forces that have hollowed out Britain’s working people, the productive economy and its green environment since 1979 are now freed from any EU regulation or accountability just as effective new financial oversight mechanisms as well as organic agricultural and food policies are due to be further implemented, monitored and enforced. This is the undertow historical meaning of the near-hate campaign that has been waged for endless months on the ‘EU bureaucracy’ larded in selective anecdotes without principled substance. Such is the standard method of big-money campaigns against public regulation for the public life good. If more private profit is not fixed into the new regime, it is relentlessly attacked and denounced as ‘suffocating red tape’ and a ‘ruinous burden on business’. This is the signature demand and condition of transnational corporate rule.

 

 

Cui Bono? Remembering the Past to Now

The rootless global money party centred in London has long run Britain with flagrant Thatcherite governance for transnational banks and corporations, overthrowing the post-War labour-capital settlement in Britain. Big London money backed by the Murdoch press was then consolidated in Blair’s ‘New Labour’ capitulation to corporate power through Gordon Brown Labour-light to the election of financier-scion David Cameron. PM Cameron then took the Brexit spectacle as the occasion to resign to avoid, insiders say, the outing of his unexposed financial fraud as PM. Now the government of Great Britain is in the hands of a secretively advised Theresa May. Although as Home Secretary she was unequivocally anti-Brexit, something happened. Despite the very dubious results of the leave-the-EU referendum, she reversed field from support of the EU once in the PM office, and was instantly re-branded as full-square behind Leave as “Brexit is Brexit” and “the irreversible decision of the British people”. Now-PM  May has led official erasure of the fact that the winning vote was only by (official Electoral Commission tally) 37 % minority of voters. In the same vein of memory-hole command, PM May and her backers  ignored the LSE scientific survey reporting that non-voters polled 2-to-1 against Leave once they learned the outcome. The reigning protocol, as with Trump with whom she became bonded in ‘the special relationship’ of the US and the UK that runs British politics, is to annihilate life-protective regulations as new freedom, and enforce follow a bigger corporate tax-cut than Reagan or Trump to a 10% level. Where did the mandate come from for such radical hollowing out of government capacities to govern on behalf of the common interests of society, citizens and their environment? There has been no mandate, but only a one-off 37% popular referendum result with no legally binding force until it is locked into the ‘Great Repeal Act’ and June 8 UK election to legitimate it with no public understanding of the meaning.

The die had been cast behind the scenes. A 37% vote against the considered will of the majority to stay in the EU was going to be used as a no-alternative mandate for massive deregulation and de-taxation of big money powers across the UK without public debate on these issues or even recognition of them.  An Orwellian erasure of facts and totalitarian silencing beneath conscious choice continued right up to the election without anyone evidently knowing it. The PR cover-up since the ever-more lavishly suited Theresa May became PM  has been to brand her office in Maggie-2 resonance as a resolute and honourable defender of the democratic will  of the British people and an anchor of stability to steer Britain’s new future. PM May and advisers have accordingly changed the 2017 general election –she had committed to 2020 before her behind-the-scenes management took over – to an ad hominem vote over her character as PM, not about the radical de-regulation of finance, the environment and the tax code to, in essence, serve the rich while dispossessing the great majority of their labour, social and environmental protections and rights. It is the sort of action from the top that the original Magna Carta stopped by regulating an out-of-control King, only now the unaccountable ruler is bank and corporate money profit seeking even more unequal and total rights over the soon- to-be rump England. The money party cares nothing for nation including  Great Britain except as it fits their divide-and-rule agenda over the trillions of dollars they control daily in play for more asset control over the world. Now firmly in the supreme office with cabinet and media support, PM May’s office has masterfully managed transition to doing the opposite of what she formerly stood for. The Brexit program for private money control over public forces and rules of how society is to live has remained unflagged by even the Opposition and radical left voices.  None see through to the ultimate ruling party behind political scenes, nor to the ultimate fact that it is not economically efficient or even productively capitalist. Its hidden financialization forces and anti-labour-and-ecological agenda of radical de-regulation are, in principle, counter-productive, parasitic and self-multiplying against the common interest of its social and environmental life hosts.

 

The Unasked Questio: Who Wins Now?

On the PR face of it, Theresa May is the clergyman’s daughter soundly risen to PM office. But she is, more deeply, the perfect foil behind which to sneak a Brexit end to the threat of EU regulation of the most life-destructive private money powers of Britain. Brexit is in sinister parallel with the life-blind deregulatory forces of the Trump/Republican forces letting the ruling money party run free to become multiply richer while stripping scientific environmental regulations, monitoring and prevention of cumulatively ecocidal externalities of global financialization and environmental toxification. The difference is that the English financial and factory-food lords are far stealthier and unseen in their demonstrable strategic plan to Leave the EU because it leads the world in scientific method, life-protective regulation and implementation. No-one seems yet to recognise this in the UK, unlike the rising US awareness of at least the Trump-Republican threat to the US and global environment and – more specifically – the Environmental Protection Agency and even the century-evolved and world-leading US national parks. “Making America great again” excludes the life ground. When PM Theresa May now hard-presses Leave the EU even when formerly opposed to it – most of all because of its weakening of Britain’s defences against terrorism – who can doubt something has re-motivated her to reverse the agenda.

The tell-tale avoidance of truth is seen when she lashes Jeremy Corbyn for even  connecting the terrorist operation of Manchester back to the facts of Britain’s war-waging in poor foreign nations from which the suicide bombers come. “Many experts, including professionals in our intelligence and security services,” Labour leader Corbyn  observes, “have pointed to the connections between wars our government has supported or fought in other countries, such as Libya, and terrorism here at home.  Joining the dots is taboo.  In such closure to facts, PM May implicitly justifies government actions on the basis of the legitimacy of past state actions which are war-criminal under international law, and – beneath notice again – stopped Libya specifically from its gold-dinar Bank of Africa plan based on oil revenues to lend to other African countries without the debt enslavement long coveted by London-connected private financing of states (including the British government itself). Who do these actions of repression of war-criminal facts and seizure of other people’s assets serve?

In this light, consider PM May’s capacity to carry Leave the EU as PM compared to its most charismatic leader on the ground, Boris Johnson. Although he has long been London finance’s man as Mayor as well as leader of the Brexit campaign, the master plan cannot go forward with him any further because, as a known liar and bounder, he is completely unfit as a credible finisher in PM office. Those who lead here know very well how to rule behind effective public relations to keep their control acceptable on the public stage– as Wall Street has done with one elected US president after another. This is why the known libertine and shameless US-born self-promoter Boris Johnson was – however charming and useful – stopped for the job of ‘Prime Minister of Great Britain’. He might indeed provoke cross-party reaction against pushing a onetime minority poll into a reversal of modern British history which took away the EU passports and future opportunities of England’s young professional classes.

There is much to cover up here that needs a steady woman ruler with a better manner and more socially just in bearing. So Prime Minister Theresa May it was. Thus the sole regulatory powers in place keeping the private financial superpower of London in check against another 2008 emptying of the public treasury and pensioners’ incomes – not to mention the deregulation de-greening of England by an industrial factory frankenfood system – escaped the public’s attention. To credibly cover up what nobody knows while believing in her mission is made-to- order for PM May, and so the Trump-like mega de-regulation and de-tax agenda has gone all the way to days before the June 8 British general election with far less fuss. Boris was meanwhile made Foreign Minister to insult the EU onto their heels in England’s revolution backwards for the unproductively and villainously rich. Few noticed that all these political shenanigans served a unifying function. The new EU financial regulations on London’s big banks could not be implemented, monitored or enforced with Brexit stopping it all in its tracks.  EU Organic Agriculture Regulations protecting the environment and natural ecosystems from genetic contaminations and industrial clearances of green life was simultaneously terminated with hardly any notice. That foods themselves are released from safe and scientific EU standards has remained a non-issue. For poignant household example, British demands for hygiene standards to be changed to US rules so as to permit chicken meat sanitized only by chlorinated water, to allow beef raised with growth hormones, and to free genetically engineered substitute foods or GMO’s from production and label restrictions have all been stopped dead by Brexit.

With London finance as well as industrial agriculture and false foods freed from codified norms of responsibility to the common life interest long evolved, tested and instituted within Britain and the European Union, the most predatory and counter-productive forces in Britain are allowed to run free with no public notice before the June 8 general election.  EU labour rights (eg., 48-hour week), human rights (e.g., employees’ and prisoners’ rights), financial oversight of any independent kind (as we have seen), and virtually all environmental standards developed beyond the US model, all  are discontinued by  the Great Repeal Act. With no evolved EU standards of economic, social or environmental protection legally obligatory and enforceable any more, the June 8 election will lock it all into the future with no way back that can be reasonably relied on without electoral reversal. With all the historical bearings and force of precedent, independent adjudication and law left behind by Leave, a US-UK deregulation and de-taxation orgy can proceed as ‘democratic’ if PM May wins the election. This is why PM Theresa May as the first head of state to visit the White House came out of their private meeting holding hands with Donald Trump. Demonstrating its confidence in the liberated financial rule of Britain as the Great Repeal Bill proceeded, Goldman-Sachs simultaneously committed to a $500-million headquarters in central London.

 

 

London Finance with Goldman-Sachs Escapes All EU Financial Regulation

The very definition of the EU Central Bank’s mandate to investigate and supervise “the business model, risk management, and capital, liquidity and funding”of private-profit bank and financial institutions including London  (via a rigorous Supervisory Review and Evaluation Process by elite teams of professional accountants)  is anathema to the long unregulated US-UK financial system. London finance like Wall Street is very used to increasingly devouring public treasuries, pensions and savings to become 40% and rising of the entire economy. They have done this through the global financial meltdown they have caused to multiply their money-demand control of the planet in a myriad of algebraically concealed ways with no oversight supervision, no independently verifiable standards, and no real reforms. The European Central Bank has finally moved to institute common standards across the Union – what was done after the Great Depression but has been reversed since. Private London-Wall Street banks and finance will do anything to stop this regulatory reform to protect their many trillions of assets and liabilities running free to continue unimpeded in the greatest unearned and still rising transfer of wealth to the rich in history. The economic stakes are unprecedentedly high, and so the silencing of any notice of the reforms to regulate them has in the UK been total in the mass media and even in Labour policy recognition. Consider the vast treasure involved. “Existing financial rules” in London banks have been officially judged by independent experts as “woefully inadequate”, and all of London’s foreign currency trading (globally dominant and largest in Euros) remains unregulated and untaxed.

Vast investment banking, cross-border sales of securities, Euro liquidity to clearing houses, non-performing loan recognition, coverage and write-offs also escape independent regulation by Brexit and the Great Repeal Act. Revenue-cap norms on skyrocketed financial pay to executives, standards of internal audit, deferred tax assets and credits masked as capital, capital adequacy, liquidity requirements and ability to pay liabilities are all also blocked by post-referendum laws. Unnoticed too are overdue binding norms on regulating the competence of new members of management and key function holders (say, Boris Johnson) and oversight of collective investments in transferable securities by captive states and unilateral tax advantages gained by their public issue and sale for profit. In sum, the Capital Requirements Directive and Regulations are set on fire by the Great Repeal of European Union obligations, now to be locked in by the June 8 election. What are boasted as ‘elegant and sophisticated innovations of investment instruments’ and so on, are in fact systemic methods of fraudulent diversion with no qualified, independent accounting authority allowed into check their schemes fixed to maximally profit powerful private financial dealers against transparency and liability, elected government accountability, and the common interests of everyone else.

 

 

The Great Silencing

This whole joining of fateful dots has been covered in silence. Big London bank and finance has so far got away with veiled abolition of all the overdue EU financial rules, monitoring and enforcement to regulate them after the 2008 financial meltdown in which an estimated $26 trillion of public money has been swallowed by the transnational private banking system led by Wall Street and London. In faint contrast, there has been a slight exposure of the Brexit reverse of evolved EU environment protections, monitoring sciences, directive laws, and feed-back enforcement processes. But here too any information has occurred only in fragments, with no connections to the EU’s life-protective binding rules on industrial farming, GMO products, and industrial chemical pollutions and toxins. For example, you will not see in any government press release or corporate mass media any mention of the European Union’s world-leading environmental protection by its Organic Agriculture Regulations setting out “the principles, aims and rules of food production and labelling”. No-one mentions in the media or government that these regulations are precisely what are eliminated from monitoring, feedback and enforcement in Britain once the Great Repeal Act is legitimated by the June 8 election.   In similar vein, there is a white-out of pre-and-post-Brexit reference to EU’s historic and definitive Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). It is by far the most advanced environmental and human health protection system scientifically validated in existing government and the world. But it too is made invisible in the ruling discussions and debates. Such jam-it-through strategy with no public understanding and almost all the primary life-protective common legislation effectively concealed has been shrouded throughout in the pervasive media image of PM May vs. hapless Corbyn Labour. This is the only issue raised for voters in the June 8 election. The global media too have consciously or unconsciously collaborated in making this most important election in British history in financial and environmental terms, a non-issue. Yet even all this has not been enough for the great cover-up still in motion. There has been a Lobbying Act to stop informed NGO’s – but not any of the London-based big transnational banks and corporations – from lobbying before the June 8 election, a new law which has frightened them into silence with Greenpeace already convicted and fined.

 

 

What Does Not Fit the Life-Blind Program?

One underlying principle governs beneath the political scenes, speeches and choral commentaries on stage. It also governs the UK-US ‘special relationship’ and Wall Street-London axis at the same time, in different ways: De-fund and de-regulate all life-protective laws, agencies and enforcements that cost public and corporate money, and subsidize instead the unproductive or counter-productive private money party’s multiplying growth.

The method is the same at base. Private Wall-Street and London banks behind the scenes print the world’s money by debt issue for maximum profit to the top while producing nothing but multiplying their private money demand over all that exists.   Transnational corporate money sequences funded by the banks, in turn, strip and pollute life bases on all levels to produce and sell profit ever more commodities priced for maximum private profit with few or no life standards to govern their extractions, productive processes, products, wastes and life-destructive externalities. For all its faults, the European Union has gone much further than any other unified jurisdiction in human and ecological regulations of these material phases, and the financial drivers behind them. This is ultimately why the UK private money party, especially its non-productive and counter-productive investors, have repudiated EU regulations of them on other pretexts. In general, the connected global forces of life and life means destruction are screened out by the established framework of meaning which is in principle life-blind. In consequence, private financial and corporate forces are released from what modest public regulation has developed to protect organic, social and ecological life systems, and the systemic despoliation of global life-organisation continues to run down biodiverse energy capacities on all levels. The UN Paris Agreement on ‘climate change’ is intended to meet the most dangerous consequences of this system. But it is selective, and ‘climate change’ euphemises hydrological-cycle destabilization and pollution that is the baseline force of world life and life means destruction. Again unifying principles and concepts are screened out of public discussion as well as silo disciplines.

Jeremy Corbyn’s back-to-the basics Labour movement is hopeful in that it is not bound like Tony Blair’s ‘New Labour’ to the dominant Murdoch media and big corporations controlling the agenda via government committees and PFI’s.  And this is why Corbyn’s grass-roots leadership is pervasively belittled in the dominant media, and also why the while historic stakes of the June 8 election have been systematically blinkered out. The ruling framework of meaning presupposes the life-blind system, rules out what does not conform to its money-value logic, and attacks what seeks to reform it. So as the stakes keep getting higher as June 8 approaches, they are kept out of the discussion. There has been a systemic blocking out of all the momentous issues in the campaign before ‘Brexit’ and after it to today. The meta program is mind-locked, and compulsively proceeds even when its political leaders have no legitimate ground to proceed, but only a transient minority vote for Leave the EU in a largely apathetic and cynical referendum with no binding force. The Great Repeal Act of  EU regulations follows in lockstep fulfilment of the meta program, and an unscheduled snap election while Tory polls are still far ahead is set to cement it all in before the public wakes up to the meaning. Thus proceeds the greatest system-wide reverse and financial boondoggle in modern English-speaking economic history and social-ecological evolution.

 

 

There is No Alternative

The re-grounded Labour movement does the best it can for the working people and dispossessed across Great Britain, the only organised institution to do so in the country. But this too is ridiculed and condescended to in the corporate press. And still the deeper and historic issues remain completely out of view. In recent days, nonetheless, Labour has stood for returning the looted national railway system and other privatized utilities to a productive public direction, for taxing the rich more to fund falling public services, and for connecting Britain’s terrorist problem to its armed-force actions in other countries.  This has given a spike in the polls to Corbyn labour. Yet still the profound major issues of ‘Brexit’ itself remain covered over. The dots of the essentially phoney Leave the EU referendum are not yet joined. The holus-bolus financial and environmental deregulation by the Brexit scheme remains undefined. The basic outline for the historic hoax has remained undetected into June. “There is no alternative” has thus been reconstituted into the 2017 election. The underlying driver to cement the unaccountable private money power demanding ever more into a de-regulation bonanza remains unnamed. Not even the master slogan of ‘Brexit’ is deconstructed as a public relations mask of the greatest backward move in life-protective norms in historical record: all to serve life-means destroying or unproductive money-party powers that are fronted by photogenic leaders on all planes. The rationally self-maximizing growth of private-profit power over all existing assets is built into the meta program. But it is not comprehended. It exactly follows the inner logic of ruling economic, military and strategic game theory in models and calculations, but there is no linking across the simultaneous phenomena which are life blindly forming the future. The conversion of organic, social and ecological life organisation into more money demand for fewer is now being rapidly instituted into place.

 

 

Summary

The June 8 British election is set to lock in the big-money coup against long- evolved regulations and norms protecting human, social and environmental life.  The crisis is incomprehension of the meaning. A corrosive cynicism of EU capacity to govern for the public interest (Greece the continuous demonstration), media-debased public perceptions suppressing the historic stakes involved, a US presidency demonized in all the corporate media,  NATO-supported Nazism in Ukraine as Western freedom, and other degenerate trends have not been connected in their unifying pattern – within which UK money-party reversal of post-War socio-economic evolution is taking place. PM Theresa May is the political face of the great leap backwards.  So far the ruling politics of one distracting spectacle after another has worked right up to the June 8 election, fortified by a diabolical terrorist attack on London 5 days before the vote. y.. Yet there is a growing intuition of the fast slippage of social and ecological life order into chaos with no human centre of gravity in charge.  The British public may still see through to the underlying radical program of government de-regulation, de-taxation, and de-funding to further empower the financial looting and life-despoiling forces at work. Joining the dots behind the scenes reveals the emerging plot of meaning. The Great Brexit:

(1) stops the EU Central Bank Regulators and Supervisors from finally checking out the models, risk culture methods, inadequate reserves and so on of big London banks involved including Goldman-Sachs in the 2007-8 financial collapse, and

(2) eliminates the binding force of all the long-evolved and scientific EU regulations structured to prevent, in particular, the corporate industrial food system’s polluting and despoiling US-led methods undermining the British people’s health and environment.  

Brexit’s Great Repeal Act and PM May’s snap June election is the only way to achieve (1) and (2) without negotiation or exposing public issue. London financial accountability has most of all been silenced as an issue. Its growing trillions of nano-second fast-dealing to enrich the already rich by unregulated methods and calculations remain immune from any independent oversight. Similarly, the very aims and principles of the binding, monitored and still developing Organic Agriculture Directive are anathema to Britain’s US-led Big Agriculture and Food lobbies, not only around GMO restrictions – which US trade authorities and British GMO ‘science’ have made war on for over 15 years – but around every EU restriction on pesticides and herbicides to clear-cutting environments for monocultural factory methods to commodity motor rackets and pollutions to norms of licensed “food quality” in the corporate market. The very governing EU objectives of “biodiversity”, “animal protection”, and “organic natural systems and cycles” are a threat to Big Food production and products when attached to exactly defined, inspected and enforceable life standards. Long used to pervasive public relations sales pitches of “feeding the world” in place of accountable, life-protective environmental and nutrition standards, this very powerful British lobby is next to London Big Finance as the covertly moving major profit-first force behind the Brexit coup d’etat. Both are in principle life-blind in their mechanical financial models. Both are governed only by self-maximizing private money sequencing in exponential growth with no life-coherent ground or norms to stop their march across the world through organic, social and ecological life hosts. Both have led the Great Repeal of developed EU life standards beneath the radar of media coverage, parliamentary diagnosis, and academic silos. The June 8 2017 UK general election will open or close Britain’s life future under the rule of life-protective law.

Interpretation of Economic, Social and Cultural Rights by Human Rights Bodies in Times of Economic Distress. The case of Greece

Introduction

Economic, social and cultural rights have borne the brunt of the recent economic crisis and the austerity measures adopted to counter it. Due to their gradual implementation and the need of positive measures to implement them, they were the first to be attacked especially in developed countries where certain achievements in the field of labour rights and social security had attained quite a high standard. The proposals to amend the labour law in France and the fierce reaction of the people are indicative of this trend[1]. Given that these achievements were the result of the progressive implementation of economic, social and cultural rights, as stipulated by international human rights treaties, most of the initiatives to restrict them result in prohibited retrogressive measures.

States falsely consider that it is easier to limit economic and social rights instead of civil and political rights for various reasons. First of all there is much discussion regarding the real justiciability of social rights. Secondly, social rights are interpreted by international human rights bodies mainly through an expansive interpretation of civil and political rights. Thirdly, the dire situation of economic, social and cultural rights in most developing countries renders the discussion of their limitation in developed countries somewhat inappropriate or at least awkward. Finally, certain researchers maintain that sometimes social rights are given lower status as a matter of ideological choice[2], while their real protection is difficult due to inequalities especially within the urban centres. After discussing the possible ways of applying economic, social and cultural rights in the first part of the essay, I will then examine their application during economic crises with a special reference to Greece focusing mainly on two fields, labour rights and social security rights, and the case-law produced by international human rights bodies in that respect.

The rise and current protective framework of economic, social and cultural rights in international human rights law

I. The global normative framework: indivisibility of civil and political rights and economic, social and cultural rights

1.  At the international level

References to human rights in general and economic, social and cultural progress and development in particular are already included in the UN Charter[3]. The first international instrument – albeit not legally binding[4] – that refers both to civil and political rights and economic, social and cultural rights is the Universal Declaration of Human Rights (UDHR)[5]. Civil and political rights – the so-called “first generation” rights – were distinguished from economic, social and cultural rights or “second generation” rights in that they required no positive action by the state in order to be safeguarded. The latter had only to refrain from interfering with the right. To the contrary, it was deemed that economic, social and cultural rights required the allocation of resources and public expenditure. Therefore, they were not of immediate implementation but could be achieved only progressively. During the Cold War, Western states considered civil and political rights to be the only enforceable rights. There is also a “third generation” of rights that comprises the rights to development, self-determination, healthy environment, natural resources, collective rights etc.[6].

One can easily draw the conclusion that this is an obsolete argument that cannot firmly support a human rights separation theory, since it has already been established in international human rights jurisprudence that abstention is not enough for the protection of civil and political rights but these require positive measures as well[7], while the Vienna Declaration and Programme of Action[8] reaffirmed that: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”[9]. Even before that, the Proclamation of Teheran in 1968, stressed that “human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible”[10]. Moreover, the Committee on Economic, Social and Cultural Rights has repeatedly reaffirmed that human rights are “interdependent and indivisible”[11].

While most international human rights treaties of special protection contain provisions both for the protection of civil and political rights and economic, social and cultural rights, verifying thus their interconnected character[12], this approach was not followed by the UN Economic and Social Council when the issue of adoption of a universal covenant arose. At that time, the delegates considered that civil and political rights, on the one hand, and economic, social and cultural rights, on the other, could not be implemented in the same way[13]. The former required that states refrain from certain harmful action, while the latter could be implemented only progressively, by means of positive measures and appropriate legislative action.

Hence, the UN General Assembly took the policy decision to request the drafting and eventual adoption of two separate covenants, one dedicated to civil and political rights and the other to economic, social and cultural rights[14]. Both were submitted simultaneously for consideration to the General Assembly so that their unity could be emphasized; it was the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They were adopted on the same day by the same UN General Assembly resolution[15]. However, the two moved hence on separate tracks.

The competent organ to control implementation of the ICCPR, through the consideration of periodic reports submitted by states-parties, is the Human Rights Committee[16]. On the contrary, monitoring of the ICESCR was entrusted initially to the ECOSOC, which had the duty to receive – through the intermediary of the UN Secretary General – and consider reports on the measures that states have adopted and the progress made in achieving the observance of the rights recognized in the ICESCR[17]. The Committee on Economic, Social and Cultural Rights was established only in 1985 under resolution 1985/17 (28 May 1985) of ECOSOC and was mandated to carry out henceforth the monitoring functions assigned to ECOSOC in Part IV of the ICESCR[18].

Furthermore, the ICCPR was equipped from the very beginning with an Optional Protocol which empowered the Human Rights Committee to receive and consider individual communications on alleged violations of the rights of the Covenant. Through the mechanism of individual communications the Human Rights Committee has accumulated a remarkable case-law, which is referred to very often by other international judicial and quasi-judicial human rights bodies. The Optional Protocol to the ICESCR, which established a similar individual complaints procedure regarding economic, social and cultural rights was adopted only in 2008 and entered into force on 5 May 2013. This lack of individual complaints mechanism constituted a major practical obstacle for those that supported the justiciability of economic, social and cultural rights.

2. At the European level

The same separation is prevalent within the European continent, where this differentiation of first and second generation rights was reflected in the adoption of two instruments having a different control mechanism. The main instrument of general human rights protection, the European Convention on Human Rights adopted in 1950 and binding on all Council of Europe member states[19], and its Additional Protocols recognise only civil and political rights (and the right to education from second generation rights by virtue of article 2 Protocol no 1). What is more, the instrument is vested with a unique implementation mechanism. A European Court of Human Rights (ECtHR) is entrusted with considering individual applications on human rights violations, issuing judgments that are binding upon the respondent state, while a political organ, the Committee of Ministers, is responsible for monitoring the compliance of the member state involved, whenever a violation is found by the ECtHR, through the proposal of individual and general measures to remedy the violations. While the ECtHR protects mainly civil and political rights, it also guarantees indirectly economic, social and cultural rights by interpreting them under the prism of civil and political rights[20].

Economic and social rights as such are guaranteed by the European Social Charter (1961) and the Revised European Social Charter (1996), ratified by 27 and 34 states respectively[21]. The instrument is equipped with an Additional Protocol providing for a system of collective complaints (1995). The monitoring organ in this case is not a court but rather a Committee, the European Committee of Social Rights (ECSR), which is composed of independent experts. The latter monitors the compliance of the contracting states through two procedures: the reporting procedure, according to which states are bound to submit national reports regarding the implementation of the provisions of the Charter, and the collective complaints procedure which allows for the lodging of complaints. The ESCR examines the reports and adopts conclusions, while in respect of collective complaints it adopts decisions. Neither of them is binding.

Finally, the Charter of Fundamental Rights, adopted in the framework of the EU and having the same legal value as the founding treaties by virtue of the entry into force of the Lisbon Treaty[22], translates in a binding document the indivisibility of human rights as it was officially recognised in the Vienna Plan of Action: human rights are universal, indivisible and interdependent and interrelated[23]. Therefore, the Charter includes all three sets of rights: a) classical first generation rights (civil liberties, political rights, judicial protection), b) second generation (economic, cultural and social rights), 3) third-generation rights e.g. protection of the environment. And rights that do not fit in any of the abovementioned categories, e.g. data protection, consumer protection. There is however a gap as to which social rights are declared as principles and which as justifiable rights.

II. The justiciability of economic, social and cultural rights[24]

Formerly there was much discussion on whether economic, social and cultural rights could be considered justiciable. The prevalent opinion was that civil and political rights and economic, social and cultural rights remain in two different legal instruments and the latter have not attained the same degree of justiciability and enforceability as civil and political rights. The main arguments against are the following[25].

The “policy argument”

  • First of all it was considered that the implementation of economic, social and cultural rights was clearly a matter of policy. According to this point of view, courts are an inappropriate forum to adjudicate and pronounce on issues of social policy. And in case they are called to adjudicate, they should accord a considerable margin of appreciation to the state authorities[26].

The “limited resources argument”

  • Moreover, since their effective protection required resources, it rested solely on the state to realize them progressively. Accordingly, states argue that they do not have adequate resources to provide even the most elementary socio-economic rights to their populations. Therefore, courts could not play an active role in this procedure, because otherwise they would have to meddle in the legislative and executive function by making the law rather than applying it. It would be, in other words, an impermissible form of judicial activism. The partisans of the progressive realization approach had an unexpected ally: article 22 UDHR which stated that “Everyone, as a member of society … is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”.

The “effective remedy argument”

  • Another argument raised by those maintaining the non-justiciability of socio-economic rights is the fact that the ICESCR does not contain any provision on the duty of states to provide an effective remedy in the national legal order to individuals whose socio-economic rights have been violated. Indeed, the right to an effective remedy is a cornerstone provision in all human rights treaties protecting civil and political rights[27].

Those arguments representing a rather traditional view on the matter have thence been rebutted by the following[28].

The “violations approach”

  • One alternative, maintained by A. Chapman is the “violations approach”[29]. According to this, one should set aside the progressive realization of economic, social and cultural rights, which does not allow for their monitoring, and rather focus on the state conduct that violates these rights. Thus, violations could result from governmental measures that actually contravene the provisions of relevant international instruments or from the creation of conditions that do not foster or permit the realization of these rights and, last but not least, from policies and legislations that fail to fulfill minimum core obligations. For example, a state in which a significant number of individuals are deprived of essential foodstuffs, of primary health care, of basic shelter and housing or of basic education is failing to discharge its obligations under the ICESCR[30]. In that context, the Committee on Economic, Social and Cultural Rights has also stressed that vulnerable members of society must be protected, even in times of severe resources constraints, caused by adjustment programmes, economic recession or other factors[31].

The evolving role of courts in a democratic society

  • Another argument in favour of the justiciability of socio-economic rights relates to the role of courts in general in a democratic society. Indeed, a constant disagreement among lawyers is the difference between “legal” and “political” matters. One could seize the courts for the former but not the latter. For a long time it was suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. It is an invalid argument, if we take into account that a great range of matters have always political implications. This should not impede the courts from adjudicating on them. Likewise, courts are already involved in cases which have considerable resource implications. This approach has been also adopted by the Committee on Economic, Social and Cultural Rights, which has pointed out that the active involvement of courts in questions implicating socio-economic rights is imperative, in order to protect the rights of the most vulnerable and disadvantaged groups in society[32].

Economic, social and cultural rights that can be enforced immediately

  • Furthermore, one could distinguish between those socio-economic rights that could be enforced immediately and others that are by definition subject to progressive realization. The Committee on Economic, Social and Cultural Rights, in its General Comment no.3[33], asked for the provision of judicial remedies with respect to rights which may be considered justiciable. It also enumerated a non-exhaustive list of rights that “would seem capable of immediate application by judicial and other organs in many national legal systems”. These include the equal right of men and women to the enjoyment of all economic, social and cultural rights (article 3), the right of everyone to the enjoyment of just and favourable conditions of work (article 7a)i), the right of everyone to form trade unions and the right to strike (article 8), the rights of children (article 10 §3), the right of free and compulsory primary education (article 13 §2a), of parents and, when applicable, legal guardians to choose for their children schools (article 13 §3), the right of individuals and bodies to establish and direct educational institutions (article 13 §4), freedom indispensable for scientific research and creative activity (article 15 §3). As the Committee stated, “the fact that realization over time is foreseen under the Covenant, should not be misinterpreted as depriving the obligation of all meaningful content”[34].

Domestic application of the Covenant

  • Fourthly, the absence of a provision on effective remedies does not constitute per se an obstacle to the justiciability of economic, social and cultural rights. Although the ICESCR does not contain a counterpart to article 2 §3b ICCPR, it does stipulate that: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (article 2 §1). Pursuant to General Comment No. 9 of the Committee on Economic, Social and Cultural rights the phrase “appropriate means” also includes domestic legal remedies, which reinforce every other initiative[35]. According to the Committee: “Where the means used to give effect to the Covenant on Economic, Social and Cultural Rights differ significantly from those used in relation to other human rights treaties, there should be a compelling justification for this, taking account of the fact that the formulations used in the Covenant are, to a considerable extent, comparable to those used in treaties dealing with civil and political rights”[36]. In the same vein, the Inter-American Court of Human Rights has used article 25 ACHR to request effective remedies for the demarcation and titling of indigenous land in cases where civil and political rights and economic, social and cultural rights intersect[37].

The “permeability principle”

  • Another way to address the question of justiciability is through the “permeability principle”[38]. According to this, civil and political rights are used as a basis for admitting complaints concerning economic, social and cultural rights. For instance, allegations regarding the violation of the right to adequate housing could be treated though the right to property or violations of the right to health could be admitted as a possible infringement of the right to life or the right to humane treatment. The contribution of the Inter-American Court of Human Rights case-law to this discussion is priceless. Indeed, the IACtHR cuts the Gordian Knot of the justiciability of socio-economic rights, by protecting them through the dynamic and broad interpretation of civil and political rights. In that way, the indivisibility and interconnected character of the two generations is reinforced, since economic, social and cultural rights are inherent in civil and political rights.

The impact of austerity measures on economic and social rights. Issues of effective protection

I. The position of the Committee on economic, social and cultural rights

The centrepiece of the ICESCR is the obligation on States parties to respect, protect and fulfil economic, social and cultural rights progressively, using their maximum available resources[39]. Moreover, states parties to the ICESCR have an immediate obligation to ensure the implementation of a minimum essential level of all economic, social and cultural rights. This minimum core[40] covers for instance all obligations that ensure an adequate standard of living such as essential health care, basic shelter and housing, basic forms of education etc. In order to achieve this goal, available resources have to be allocated proportionately. Thus, for instance, a budget that relies heavily on military expenditure will save little for education or health care. Even if available resources are totally inadequate, the state bears the burden of proof to demonstrate that it has used all its resources in a proper manner so as to cover the minimum core[41].

However, states enjoy a wide margin of appreciation (to borrow the phrase inaugurated by the ECtHR)[42] regarding the implementation of socio-economic rights. The obligation of progressive realization carries naturally the prohibition – albeit not absolute – of retrogression. According to General Comment no 3, any deliberate retrogressive measure, if not prohibited, requires “the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources”[43]. This obligation remains the same even in times of economic distress or adjustment programmes.

Hence, unlike the International Covenant on Civil and Political Rights, derogations are not allowed from the ICESCR even during times of economic emergency[44]. According to the Maastricht Guidelines on violations of economic, social and cultural rights, states are obliged to respect, protect and fulfil economic, social and cultural rights through appropriate legislative, administrative, budgetary, judicial and other measures and failure to observe this obligation may result in violation of said rights[45]. For instance, arbitrary or sweeping forced evictions, which are frequent in situations of economic crises[46], violate the right to housing. Withdrawal of basic labour standards protecting private employees may amount to a violation of the right to work. Last but not least, denial of basic health care may result to a violation of the right to health in extreme circumstances even of the right to life or the prohibition of degrading treatment.

Despite the fact that full realization of economic, social and cultural rights is achieved progressively, this does not alter the legal obligation of states to adopt measures immediately or as soon as possible to that direction. States are obliged to demonstrate that they are actually taking such measures and that they are making progress for the full realization of these rights. Thus, the notion of “progressive realization” cannot be used as a pretext to avoid full execution of the Covenant’s provisions. Furthermore, certain minimum core obligations such as essential foodstuffs, essential primary health care, basic shelter and housing, or the most basic forms of education have to be satisfied, irrespective of the economic distress or the availability of resources[47]. In a letter[48] addressed by the Chairperson Pillay to all states parties it is stressed that even though states are allowed to adopt austerity measures in order to overcome severe financial crises, however these decisions should not lead to the denial or infringement of economic, social and cultural rights, especially if this results in negative impacts on vulnerable and marginalized individuals such as the poor, women, children, persons with disabilities, older persons, people with HIV/AIDS, indigenous peoples, ethnic minorities, migrants and refugees. Hence, while adjustments in the implementation of economic and social rights are inevitable, these should not lead to regression. It is interesting that the Chairperson referred to “the pressure that is exercised on many States parties” without clarifying where this pressure comes from: the overall economic necessity or third parties?

In her letter the Chairperson also identifies four requirements that have to be met by adjustment programmes: a) they must be a temporary measure, b) they must be necessary and proportionate, c) they must not be discriminatory but they must strive to mitigate inequalities especially with regard to the disadvantaged, d) the minimum core content of economic and social rights, as developed by the International Labour Organization, must be ensured at all times. Strangely enough, these requirements are identical to those applied for derogation measures from civil and political rights during states of emergency[49].

II. The case-law of the European Court of Human Rights

Even before the current economic crisis, the ECtHR had rendered judgments that included an economic dimension: violation of the right to life regarding the death of fifteen children in a home for children with severe mental disabilities due to lack of food, heating and basic care[50], inadequate access to health care for detainees or asylum-seekers raising issues under articles 2 and 3 ECHR[51], health rights of prisoners[52], violation of article 8 ECHR due to the planned eviction of Roma from an unlawful settlement without proposals for rehousing[53], total deprivation of a social pension[54], qualification of all social benefits as possessions even if they are non-contributory, so as to be covered by article 1 of Protocol No. 1 ECHR[55] etc. Of particular interest was a case regarding insufficient amounts of pension and the allegation of the applicant that this amounted to inhuman treatment, although the Court did not find a violation[56].

With regard to austerity measures adopted by states embroiled in budgetary crises and adjustment programmes, the European Court of Human Rights has already set a clear legal precedent. In Da Silva Carvalho Rico/Portugal the outcome was quite predictable: the ECtHR has dismissed the case applying the “proviso of the possible” doctrine[57]. According to this theory, borrowed by German constitutional law and applied by the Portuguese Constitutional Court as well, the state cannot be forced to comply with its obligations in the framework of social rights if it does not possess the economic means to do so[58]. Thus, budgetary constraints on the implementation of social rights can be accepted provided that they are proportionate to the public aim sought and they do not deprive the right of its substance. With a similar reasoning, the Court declared manifestly ill-founded applications against pension reductions for civil servants in Portugal[59] or the temporary reduction in the pensions of judges in Lithuania[60] which had their origin in austerity measures as a response to the economic crisis.

Against this background, we are waiting with extreme anticipation the judgment of the Grand Chamber that will reconsider the case Béláné Nagy/Hungary. The Chamber has already found that the removal of a disability pension through consecutive amendments to the eligibility criteria was considered excessive and disproportionate, thus constituting a violation of article 1 of Protocol No. 1[61].

The global economic crisis of 2007-2008 and its impact on Greece

I. The beginning of the crisis

The causes of the global economic crisis of 2008 have already been extensively discussed and will certainly continue to preoccupy political economists in the years to come, especially insofar as no safe exit from the overall crisis is yet envisaged. Consequently, we will not purport to delve into the multifaceted causes of the financial crisis, but rather to offer an overview of it and most importantly the way it has impacted on Greece and how it prompted the relevant austerity measures.

The financial crisis traces its roots in the USA back in 2007. The crisis hit initially a small segment of the financial markets, namely subprime mortgages, but soon it resulted in global recession[62]. Shortly after the initial blow, many financial institutions mostly in developed countries have been affected. National governments were required to bailout banks; the housing market was affected resulting in evictions, while prolonged unemployment became a quasi-permanent feature of contemporary societies. The crisis has had an adverse impact both in developed and developing countries, the latter mainly through the trade channel or through workers’ falling remittances[63]. According to reports, the losses of gross domestic product amounted to 10% of global output in 2008-2010, while the loss in values of assets and the loss of personal income precipitated by the austerity measures cannot still be calculated with certainty[64].

II. The immediate aftermath: the European sovereign debt crisis

The global financial crisis resulted in a European sovereign debt crisis in the end of 2008-2009 which affected primarily Iceland, Greece, Portugal, Ireland, Spain and Cyprus. The affected countries were unable to repay government debt or to bail out over-indebted banks without the assistance of third parties. Given the particularities of the European integration – the eurozone is only a currency union and not a fiscal union thus member states maintain different tax, remuneration and pension rules – the options available to political leaders to react were limited. In fact, EU and the eurozone in particular had no contingency plan to counter the effects of an economic crisis of such a magnitude.

The first mechanism that was put in place was the European Financial Stability Facility (EFSF). The EFSF was established in June 2010 as a “société anonyme” under Luxembourgish law and has provided financial assistance to Ireland, Portugal and Greece, through the issuance of bonds and other debt instruments on capital markets. It has 17 shareholders, namely the eurozone member states. Since 1.7.2013 the EFSF is not allowed to engage in new financing programmes or enter into new loan facility agreements. The EFSF assistance programme for Greece expired on 30 June 2015[65].

It was replaced by the European Stability Mechanism (ESM), a permanent international financial institution, established by an intergovernmental treaty signed by the euro area member states on 2 February 2012[66]. ESM is a crisis resolution mechanism, providing stability support to eurozone countries threatened by severe financing problems. Its financial assistance is not funded with taxpayer money; the funds are rather acquired by issuing capital market instruments and engaging in money market transactions. ESM has 19 shareholders – the euro area member states – and is open for membership to all EU member states that will adopt the euro as their sole currency in the future. Since 1 July 2013 it is the sole mechanism for responding to new requests for financial assistance and has thus far assisted Greece, Cyprus and Spain, the first two through loans subject to macroeconomic adjustment programmes and the latter through a loan to government for bank recapitalization. Greece is the sole eurozone member state that has received support from both institutions and the only one to remain in the ESM stability programme. Cyprus has exited successfully the programme on 31.3.2016, while the financial assistance programme for Spain expired on 31.12.2013[67].

Participation in these financial stability mechanisms entails as a short- and long-term consequence the adoption of austerity measures and far-reaching privatization programmes. In fact, austerity measures were the primary political choice of governments in their effort to stem the effects of the economic crisis and reduce deficit and public debt[68]. Even when applied with restraint, austerity measures have an adverse impact on the enjoyment of acquired economic and social rights and thus on our ordinary and everyday life. This approach was inaugurated by the International Monetary Fund that implemented the Structural Adjustment Facility in 1986 and the Enhanced Structural Adjustment Facility one year later, making financial assistance conditional on the implementation of neoliberal structural adjustment programmes impacting adversely on human rights[69].

III. The impact of the economic crisis on Greece

1. The financial assistance provided to Greece

Due to its macroeconomic imbalances[70] and the lack of flexibility resulting from its status as a eurozone member state, Greece was the first eurozone country affected by the global economic crisis. Overcoming the “no bail-out” clause of article 125 of the Treaty on the Functioning of the EU, which prohibits the Union and individual member states from assuming the commitments of governments and other public authorities[71], the first financial assistance package for Greece was agreed in April 2010 and consisted of bilateral loans from eurozone member states and the International Monetary Fund (the so-called Greek Loan Facility).

However, the Greek Loan Facility was inadequate to counter a more or less systemic crisis. Therefore, in March 2012 the Eurogroup approved a second support programme for Greece, provided again by the Eurozone member states and the IMF. This time, the Eurozone assistance was not provided though bilateral loans but through the EFSF. Furthermore, the Eurozone member states decided to apply the procedure of the Private Sector Involvement (PSI) in the restructuring of the public debt. Thus, in May 2012 about 97% of privately held bonds took a 53,5% cut of the face value of the bond, corresponding to an approximately 107 billion euro reduction in Greece’s debt.

Overall political instability and reluctance of the Greek governments to adopt and implement measures and reforms requested by its lenders led to another impasse in the summer of 2015 when Greece, unable to repay its debts, arrived very close to official insolvency. Controls were imposed on Greek banks to avoid a massive flow of capital and the Greek government decided to submit a request for financial assistance to the ESM. After laborious negotiations of 17 hours the parties reached an agreement (the Financial Assistance Facility Agreement) on 13 July 2015. The agreement was approved by national parliaments and on 19 August 2015 by the ESM Board of Governors. The precise amount of ESM financial assistance will depend on the IMF’s decision regarding its participation in financing the programme, and on the success of reform measures by Greece, including the privatisation of state assets[72].

2. The measures adopted

In order to receive the financial support packages, Greece was requested to adopt a series of specific measures of adjustment the implementation of which was monitored in the first two phases (Greek Loan Facility and EFSF) by officials from the European Commission, the European Central Bank and the IMF, the so-called “Troika”, a unique institution of an ad hoc nature whose establishment lacked an appropriate legal basis in primary EU law. For this purpose a Memorandum of Understanding was signed between the member state concerned and the “Troika”, whereby the member state – in our case Greece – undertook to carry out a number of actions in exchange for financial assistance. The assistance was provided on the basis of strict conditionality; thus the successive Greek governments enjoyed limited leeway in the adoption of the measures required to overcome the crisis[73]. The same stands for the ESM: a set of prior actions were requested urgently in order to enter into negotiations for the reform agenda as it was set out in the most recent Memorandum of Understanding which was approved by the ESM Board of Governors on 19 August 2015 following its endorsement by ESM members according to their national procedures. The MoU of August 2015 focuses on four key areas: restoring fiscal sustainability; safeguarding financial stability; boosting growth, competitiveness and investment; and reforming the public administration.

Given the urgency of the situation, the measures adopted at the national level in the course of the three successive financial assistance packages were not carefully balanced leading to restrictions on economic and social rights. A series of laws, presidential decrees and ministerial decisions form the backbone of the austerity legislation. Due to their high number and lengthy content a detailed analysis of the said legal documents is beyond the scope of the present article. We will provide a selection of the most representative legislations adopted and we will focus on the ones that are detrimental on the social rights selected for analysis in the present article: social security and labour rights.

The first set of social rights attacked by austerity measures were labour rights and social security rights. A set of laws[74] introduced tectonic changes, amongst which figure the following[75]:

  • modifications to both public and private pension schemes;
  • reduction of public sector wages by 12% and later a further reduction of 3%.;
  • remuneration of special apprenticeships for people between 15-18 years old with 70% of the general minimum wage, while new entrants in the labour market under the age of 25 would be remunerated with 84% of the general minimum wage;
  • establishment of the wage setting system by law, whereas the minimum wage would be determined by a government decision, after consultation with the social partners;
  • reduction of the general minimum wage by 22% for workers older than 25 years old and by 32% for younger workers;
  • precedence of the company level CEAs over sectoral or occupational ones even if the latter contained more favourable provisions, provided that the safety net of the National General Collective Agreement is observed;
  • arbitration procedures could be initiated only upon mutual consent of the parties, while the arbiter shall take into consideration the economic distress and the requirements of the adjustment programme;

 

Austerity legislation and effective protection of economic, social and cultural rights[76] in Greece

I. Social security rights

Article 12 of the European Social Charter guarantees the right to social security. Pensions are a principal branch of social security[77]. Both the European Court of Human Rights and the European Committee of Social Rights examined cases related to pension cuts, reaching totally different conclusions.

In Koufaki and ADEDY/Greece, the ECtHR found no violation of article 1 Protocol 1 ECHR, guaranteeing the right to property. The Strasbourg court reaffirmed the wide margin of appreciation that states enjoy with regard to their social policy and concluded that the reductions pursued a legitimate aim and were not disproportionate[78]. Moreover, there was no evidence that the applicant run the risk of falling below the subsistence threshold, while the removal of the thirteenth and fourteenth months’ pensions had been offset by a one-off bonus.

To the contrary, the European Committee of Social Rights, concluded in five decisions on collective complaints against Greece that the cumulative effect of the modifications of the pensioners’ social protection were a violation of the right to social security under Article 12 ESC[79]. In particular, the Committee ruled that certain restrictions such as those related to holiday bonuses, restrictions of pension rights in cases where the level of pension benefits is a sufficiently high one and in cases where people are of such a low age that it is legitimate for the state to conclude that it is in the public interest for such persons to be encouraged to remain part of the work-force than to be retired, did not in themselves constitute a violation of the ESC. However, the cumulative effect of the restrictions would bring about an overall degradation in the standard of living of the pensioners concerned.

It is interesting that the Greek Government tried to conform to the decision of the European Committee of Social Rights by notifying to the Committee of Ministers the measures it had taken to remedy the violations. The measures had a twofold approach: firstly the protection of vulnerable groups and secondly the improvement of the social security system. As to the first pillar, the government asserted that the pensions below 1000 euros would be guaranteed, the Benefit of Social Solidarity (EKAS) which is a non-retributive benefit for the protection of the elderly with low pensions would continue to be granted, a pension of 360 euros would be granted for the non-insured elderly based on certain conditions, while according to Law 4052/2012, the programme “Pensioner’s homecare” had been established. It had also introduced favourable regulations regarding the payment of the Extraordinary Special Property Tax, tax exemptions for certain types of pensions, as those granted to war victims, war invalids, blind persons or invalids and beneficiaries of EKAS, while cuts on pensions were not made if the beneficiary or members of his family receive small pensions, or are invalids[80]. As to the improvement of the social security system, the government tried to counter problems of fraud in social security and incidents of “contribution evasion”

While the measures notified are in themselves welcome, it is doubtful whether they are going to last, especially as there is no sign of overcoming the crisis and Greece is supposed to introduce further measures in view of the ESM assistance package she is going to receive.

Contrary to the hesitant approach of the ECtHR regarding the right to social security in economic emergencies, the Inter-American Court of Human Rights has consistently applied a different approach. In case “Five Pensioners”/Peru[81] the problem was the reduction by 78% of the pensions of the public sector workers while by law and Constitutional Court judgments their pension was planned to gradually equalize the salary they used to receive. The Inter-American Commission on Human Rights claimed the violation of articles 21 (right to property), 25 (right to judicial protection) and 26 (progressive development) of the Convention. The respondent state, for its part, invoked the argument of the state of emergency due to the economic crisis that it faced at that time.

The Court dwelt upon two questions: a) whether the right to a pension could be considered an acquired right, and b) what parameters should be taken into consideration to quantify the right to a pension, and whether it is possible to cap a pension[82].

Although the first question has been answered in the negative by the ECtHR in Koufaki and ADEDY/Greece[83], the IACtHR followed its own path of reasoning, assisted in part by the Constitution of the country and the jurisprudence of its Constitutional Court. Indeed, the former stipulated in its provisions that the “social regimes established for the pensions of public sector employees do not affect legally acquired rights, particularly the right corresponding to the regimes of Decree Laws 19990 and 20530”[84] (these decrees constitute the legal basis for the granting of the pensions in question). Furthermore, the Constitutional Court indicated that, once the requirements for granting a pension set forth in Decree Law No. 20530 have been fulfilled, the employee: “[…] incorporates into his patrimony, by virtue of the express authority of law, a right that is not subject to recognition by the Administration, that is not something that the law grants in some way, that, as has been recalled, arises from compliance with the requirements established by law. Thus, those who were subject to the regime of Decree Law 20530 and who, until the entry into force of Legislative Decree 817 had already complied with the requirements indicated in the norm, that is, they had worked for twenty years or more, have the right to an equalized pension, in accordance with the provisions of Decree Law 20530 and its modifying provisions”[85]. Bearing into consideration the foregoing, the IACtHR concluded that the right to property, stipulated in the ACHR, protects also the right of the applicants to receive an equalized retirement pension in the sense that it is an acquired right[86]. The Court referred also to the limitation clause of the San Salvador Protocol (article 5), holding that, although states may restrict the enjoyment of socio-economic rights in order to preserve the general welfare in a democratic society, and consequently the right to property, such restriction should take place only through the appropriate legal procedure[87]. However, in the instant case no legal process has been applied.

What is most important in the Court’s reasoning is indeed its approach of the right to property in conjunction with the right to a pension. The Court emphasized that from the time that a pensioner pays his contributions to the pension fund, ceases to work for the institution in question and opts for the retirement regime set forth in the law, such pensioner acquires the right to have his pension governed by the terms and conditions established in such law. It is a very important statement, especially if we take into account the adjustments brought about to pension systems all over the world due to the current economic crisis[88]. The Court applied the same reasoning in another case brought before it by the Commission against Peru[89].

Of particular interest is the dictum of the Court regarding the violation of article 26 of the American Convention on Human Rights. The Court did not deny its violation. Instead, it refused to pronounce upon it, stressing that the progressive development of economic, social and cultural rights should be measured in relation to the growing coverage of the right to social security and to a pension of the entire population and not in the circumstances of a very limited group of pensioners[90]. In any case, it did not preclude a prospective violation of the article in the factual and legal framework of another case[91].

 II. Labour rights

The right to a decent remuneration which is enshrined in article 4 of the European Social Charter[92] was examined thoroughly by the ECSR in complaint no. 66/2011. The Committee examined the differentiated reduction of the minimum wage of people under 25 and it concluded that it constituted a violation of the right to fair remuneration[93]. The Committee held that although in certain circumstances it is acceptable to pay a lower minimum wage to young workers, this wage must under no circumstances fall under the poverty level of the country. In the same set of decisions (no 65/2011), the Committee has found further violations of article 4 ESC, in particular para. 4. More specifically, the Greek state by equating the first twelve months of employment in an open-ended contract with a trial period, made dismissal without notice or compensation possible during this period, thus violating directly article 4 para. 4 ESC.

Unlike the decisions on violations of the right to social security, where the Greek Government has introduced measures of remedy, here the Greek delegation before the Committee of Ministers, while accepting the conclusions of the ECSR, it pointed out that the measures were of a provisional nature and that the Greek Government had the firm intention to revoke these measures as soon as the economic situation of the country would allow. However, due to the political and economic constraints, “it was not possible to envisage a set timeframe, although it was unlikely that tangible results in Greece would be apparent before 2015”[94].

In this respect we should also cast an eye on the jurisprudence of the Inter-American Court of Human Rights. The right to salary was central in case Abrill Alosilla et al./Peru[95], regarding the retroactive application of decrees that between 1991 and 1992 eliminated the salary scale system that was in effect. Although the state acknowledged its international responsibility before the Commission (in relation to the right of “amparo” – article 25 ACHR – and not the right to property – article 21 ACHR), the failure to conclude promptly a friendly settlement brought the case before the IACtHR.

In this case, the Court did not make any specific reference to economic, social and cultural rights or the San Salvador Protocol. Nevertheless, the national legal documents examined by the Court (judgments of the Constitutional and Social Law Chamber of the Supreme Court of Justice) and the facts of the case imply the violation of socio-economic rights and in particular the right to receive remuneration.

The issue in question was the repeal, by virtue of decrees with retroactive effect, of the salary adjustment system known as “salary scales”.  This system was not subject to collective bargaining and consisted of the automatic adjustment of monthly remuneration for the personnel at that time denominated as Functionaries and Senior Management, taking as its basis a) the remuneration of the unskilled laborer or lowest position at the company and b) the Salary Scales or Indexes, or Variation Coefficients previously established and assigned to each position. In effect, each time the company increased the salary of the lowest positions as a consequence of a collective bargaining process, by necessity it also resulted in increases for the other positions in the company that could not benefit from that process[96]. The suppression of the “salary scales” system had as a result not only the reduction of salaries but also the retroactive collection of payments[97].

The Court reminded that it has developed a broad concept of property and that it has, through article 21 ACHR, protected vested rights, which are understood as “rights that have become part on an individual’s wealth”[98]. It also emphasized that the principle of non-retroactivity of the law meant that the new law does not have the authority to regulate juridical situations that have been duly consolidated. In this respect the IACtHR observed that the “salary scales” system had generated an increase in wages that had become part of the wealth of the victims, i.e. a vested right. The Court differentiated between the system of salary adjustments, which was not a right of the victims per se, and the salary increases already received that had already become part of the workers’ wealth. In effect, the latter constituted a vested right that was affected by the retroactive application of the law, resulting in violation of the right to property[99].

One should note the “human face” shown once more from the Court, regarding the personal situation of the applicants. In effect, the IACtHR paid particular attention to the fact that all workers had organized their finances based on their salaries and that the salary reduction compromised their opportunity to provide, for instance, economic support to sick family members, while some of them were obliged to sell possessions. It is a human approach that we rarely observe in an international tribunal, even a human rights one[100].

Concluding remarks

Even though international bodies reaffirm in every occasion that retrogression in the protection of economic, social and cultural rights is prohibited and despite the reassurances of the Greek government in one set of complaints before the ECSR that it is doing everything possible to guarantee the protection of vulnerable groups, the situation in Greece is far from stabilising or improving. The new request of assistance before the ESM brings along a new series of measures affecting socio-economic rights (Laws 4389/2016 and 4387/2016) and a great array of privatisations in public assets and organisations that touch upon the minimum core of social rights. A salient example is the announced privatisation of the Athens and Thessaloniki Water and Sewerage Company against the ruling of the Greek Council of State[101] that such a move could put public health at risk due to the uncertainty regarding the quality and affordability of the services[102]. We have a long way ahead until we can declare with certainty that socio-economic rights in Greece enjoy the level of protection they did before the economic crisis.

Notes

[1] Loi travail : 17 % de grévistes à la SNCF pour la première journée de grève illimitée, Le Monde.fr avec AFP, 01.06.2016, http://www.lemonde.fr/economie/article/2016/06/01/loi-travail-debut-d-un-mouvement-de-greve-illimitee-a-la-sncf_4929935_3234.html

[2] Garcia Pedraza P., Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms, Institute for Human Rights, Åbo Akademi University, 2014, p. 18.

[3] See articles 1, 55, 56, 61, 62, 68.

[4] There is a general consensus that most of the human rights norms enumerated in the UDHR have acquired a status of customary law, see in particular, Henkin L., The age of rights, Columbia University, New York, 1990; Meron T., Human rights and humanitarian norms as customary law, Clarendon Press, Oxford, 1989. This argument is further corroborated by the fact that the UN Human Rights Council in its Universal Periodic Review mechanism (established in 2006 by virtue of UNGA res. 60/251) is using as a reference instrument not only the human rights treaties binding upon states and the UN Charter but also the UDHR.

[5] UNGA res. 217 A/10.12.1948.

[6] For this categorization see Karel V. Human rights: A thirty year struggle. The sustained efforts to give force of law to the Universal Declaration of Human Rights. UNESCO Courier, 30:11, Paris, November 1977. Contemporary scholars have overridden this conceptualization (see infra).

[7] Mowbray A., The development of positive obligations under the European Convention on Human Rights, Human Rights Law in Perspective, vol. 2, Hart Publ., Oxford-Portland Oregon, 2004.

[8] Adopted by the World Conference on Human Rights in Vienna on 25 June 1993.

[9] ibid. Part. I, §5.

[10] Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

[11] See for instance, General Comment no 9 “The domestic application of the Covenant”, UN doc. E/C.12/1998/24, 3.12.1998: “The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent”, §10.

[12] International Convention on the elimination of all forms of racial discrimination, UNGA res. 2106 (XX), 21.12.1965; Convention on the Elimination of all forms of discrimination against women, A/RES/34/180, 18.12.1979; Convention on the rights of the child, A/RES/44/25, 20.11.1989; International Convention on the protection of the rights of all migrant workers and members of their families, A/RES/45/158, 18.12.1990; Convention on the rights of persons with disabilities, A/RES/61/106, 24.1.2007.

[13] See for an account of the relevant discussion, Craven M., The International Covenant on Economic, Social and Cultural Rights: a perspective on its development, Clarendon Press, Oxford, 1995; Eide A., Economic, social and cultural rights as human rights, in Falk R., Human rights: critical concepts in political science, Routledge, London, 2008, p. 299-318.

[14] See A/RES/6/543, 4.2.1952.

[15] A/RES/2200(XXI) A, 16.12.1966. ICCPR has 167 ratifications, whereas ICESCR 160.

[16] Arts 28 et seq. ICCPR. Similar committees of independent experts have been set up by all core human rights treaties.

[17] Art. 16 ICESCR. The procedure of examination is described in arts 16-23 ICESCR.

[18] “Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, Economic and Social Council resolution 1985/17.

[19] Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols no 11 and 14), Rome 4 XI 1950, ETS 005.

[20] The Council of Europe promotes the indivisibility of human rights and the ECtHR has emphasised already in its very early jurisprudence that “there is no water-tight division” between social and economic rights and civil and political rights, Airey/Ireland, appl. no. 6289/73, judgment 9.10.1979, para. 26. The regional court that has an extensive jurisprudence on economic, social and cultural rights through an expansive interpretation of civil and political rights is the Inter-American Court of Human Rights, see in that respect Saranti V., Economic, social and cultural rights in the Western Hemisphere under the prism of the Inter-American Court of Human Rights case-law, Annuaire International des Droits de l’Homme, VII/2012-2013, p. 515-553.

[21] Greece ratified the European Social Charter on 6 June 1984 by virtue of Law 1426/1984 accepting 67 of the Charter’s 72 articles. The Revised European Social Charter has been ratified on 18 March 2016. Greece has also ratified the Additional Protocol and has accepted the system of collective complaints on 18 June 1998. However, it has not made the declaration that would allow non-governmental organisations to submit collective complaints.

[22] In 2000 the European Parliament approved the Charter which was given legally binding force in 2010 when it was incorporated into the consolidated version of the TEU, by virtue of article 6 TEU that declared that the Charter shall have the same legal value as the Treaties. However, UK and Poland have chosen for a special status through the Protocol on the Application of the Charter of Fundamental Rights of the EU to Poland and to the United Kingdom. Pursuant to this instrument, the ability of the Court of Justice of the EU or any other court or tribunal of Poland or of the United Kingdom is not extended to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that are reaffirmed by the Charter. Thus the Charter does not create justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom have provided for such rights in their national law. See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0156:0157:EN:PDF

[23] Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, §5,  http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx

[24] See for a general discussion Coomans F. (ed.), Justiciability of economic and social rights. Experiences of domestic systems, Intersentia, Antwerp, 2006; de Schutter O., International human rights law, Cambridge University Press, 2010, p. 740-771; Langford M. (ed.), Social rights jurisprudence: emerging trends in international and comparative law, CUP, 2009; Liebenberg S., The protection of economic and social rights in domestic legal systems, in Eide A., Krause C., Rosas A. (eds.), Economic, Social and Cultural Rights. A textbook, 2nd ed., Martinus Nijhoff Publ., 2001, p. 55-84; Matscher F. (ed.), The implementation of economic and social rights: national, international and comparative aspects, N. P. Engel, Kehl am Rhein, 1991; Ramcharan B.G. (ed.), Judicial protection of economic, social and cultural rights, Martinus Nijhoff Publ., Leiden, 2005; Scheinin M., Economic, social and cultural rights as legal rights in Eide A., Krause C., Rosas A. (eds.), Economic, Social and Cultural Rights. A textbook, 2nd ed., Martinus Nijhoff Publ., 2001, p. 29-54.

[25] Dennis M.J., Stewart D.P., Justiciability of economic, social and cultural rights: should there be an international complaints mechanism to adjudicate the rights to food, water, housing and health? 98 AJIL, 2004, p. 462-515 ; Bossuyt M., La distinction juridique entre les droits civils et politiques et les droits economiques, sociaux et culturels, 8 Revue des Droits de l’Homme, 1975, p. 783-820; Vierdag E.W., The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, 9 Netherlands Yearbook of International Law, 1978, p. 69-105.

[26] For instance, the European Court of Human Rights has repeatedly reaffirmed that states parties enjoy a wide margin of appreciation, when they determine their social policy, especially if their resources are limited and they have to set priorities, see Koufaki and ADEDY/Greece, nos. 57665/12 and 57657/12, decision 7.5.2013, §31 ; Terazzi S.r.l./ Italy, no 27265/95, 17.10.2002 ; Wieczorek/Poland, no 18176/05, 8.12.2009 ; Jahn et al./Germany, nos 46720/99, 72203/01 and 72552/01; Mihaieş and Senteş/ Romania, nos 44232/11 and 44605/11, decision 6.12.2011 ; Frimu and 4 other applications/Romania, nos 45312/11, 45581/11, 45583/11, 45587/11 and 45588/11, decision 7.2.2012, §§40, 42 ; OReilly et al./Ireland, no 54725/00, decision 28.2.2002 ; Pentiacova et al./Moldova, no 14462/03, decision 4.1.2005 ; Huc/Romania and Germany, no 7269/05, decision 1.12.2009, § 64.

[27] See art. 2 §3 ICCPR, art. 13 ECHR, 25 ACHR. The African Charter on Human and Peoples’ Rights does not contain an equivalent provision. However, article 26 of that instrument stipulates that: “States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter”.

[28] See, van Hoof G.J.H., The legal nature of economic, social and cultural rights: a rebuttal of some traditional views, in Alston P., Tomasevski K. (eds.), The right to food, Martinus Nijhoff Publ., 1984, p. 97-110.

[29] Chapman A., “Violations approach” for monitoring the International Covenant on Economic, Social and Cultural Rights, 18 Human Rights Quarterly, 1996, p. 23-66. Also, Chapman A., Russell S. (eds.), Core obligations: building a framework for economic, social and cultural rights, Intersentia, Antwerp, 2002.

[30] Committee on Economic, Social and Cultural Rights, General Comment no. 3, “The nature of states parties’ obligations (art. 2 §1 of the Covenant)”, UN doc. E/1991/23-E/C.12/1990/8, Annex III, §10.

[31] ibid. §12.

[32] General Comment no. 9, “The domestic application of the Covenant”, UN doc. E/1999/22, §10. See also decisions of national courts that give effect to socio-economic rights such as the right to housing, the right to education and the right to food, Government of the Republic of South Africa/Grootboom and others, Constitutional Court of South Africa, judgment of 4.10.2000; Yated – Non – Profit Organization for Parents of Children with Down Syndrome and 54 Parents/Ministry of Education, Supreme Court of Israel, judgment of 14.8.2002 (HCJ 2599/00); People’s Union for Civil Liberties and another/Union of India and others, Supreme Court of India, judgment of 2.5.2003. Relevant excerpts are quoted in de Schutter O., International human rights law, Cambridge University Press, 2010, p. 751 et seq.

[33] “The nature of states parties’ obligations (art. 2 §1 of the Covenant)”, UN doc. E/1991/23-E/C.12/1990/8, Annex III, §5.

[34] ibid. §9. See also the Limburg Principles on the Implementation of the ICESCR, UN doc. E/CN.4/1987/17, “Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time” (principle no 8).

[35] Similarly, despite the absence of a clause on effective remedies in the Convention on the Rights of the Child, the respective Committee has emphasized that effective national remedies must be available to redress violations, underlining that “economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable”, see General Comment no. 5 “Implementation of the Convention on the Rights of the Child, arts 4, 42 and 44 §6, UN doc. CRC/GC/2003/5, 27.11.2003.

[36] General Comment no. 9, “The domestic application of the Covenant”, UN doc. E/1999/22, §7.

[37] See, for instance, Mayagna (Sumo) Awas Tingni/Nicaragua, 31.8.2001.

[38] Office of the UN High Commissioner for Human Rights, Economic, Social and Cultural Rights. Handbook for National Human Rights Institutions, New York and Geneva, 2005, p. 50.

[39] Art. 2 para. 1 ICESCR.

[40] See General Comment no 3 The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), §10,  “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant”.

[41] Sepúlveda Carmona M., Alternatives to austerity: a human rights framework for economic recovery, in Nolan A. (ed.), Economic and social rights after the global financial crisis, CUP, 2014, pp. 25-27.

[42] In the “Maastricht Guidelines” it is described as “margin of discretion”, Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, para. 8.[43] General comment No. 3:  The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), Fifth session (1990), UN doc. E/1991/23, para. 9.

[44] See, Press Release no 71/16, Inter-American Commission on Human Rights Expresses its Concern Regarding the Declaration of a “State of Exception and Economic Emergency” in Venezuela, June 1, 2016.

[45] January 22-26, 1997, para. 6. “On the occasion of the 10th anniversary of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter ‘the Limburg Principles’), a group of more than thirty experts met in Maastricht from 22-26 January 1997 at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands). The objective of this meeting was to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies”, Maastricht Guidelines, Introduction. See, https://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html

[46] Almost 100 families evicted daily in Spain – statistics, Published time: 6 Mar, 2015, https://www.rt.com/news/238349-spain-families-lose-homes/

[47] “Maastricht Guidelines”, para. 9.

[48] CESCR/48th/SP/MAB/SW, 16.5.2012, http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf

[49] Human Rights Committee, General Comment no 29, States of emergency (article 4 ICCPR), UN doc. CCPR/C/21/Rev.1/Add.11.

[50] Nencheva and others/Bulgaria, appl. no. 48609/06, judgment 18.6.2013, paras. 117 et seq.

[51] Nitecki/Poland, appl. no. 65653/01, judgment 21.3.2002.

[52] Alexsanyan v. Russia, appl. no. 46468/06, judgment 22.12.2008

[53] Yordanova and others/Bulgaria, appl. no. 25446/06, judgment 24.4.2012. See also Winterstein/France, appl. no. 27013/07, judgment 17.10.2013.

[54] Kjartan Ásmundsson/Iceland, appl. no. 60669/00, judgment 12.10.2004; Moskal/Poland, appl. no. 10373/05, judgment 15.9.2009, Larioshina/Russia, appl. no. 56869/00, decision 23.4.2002; Kutepov and Anikeyenko/Russia, appl. no. 68029/01, decision 25.10.2005; Budina/Russia, appl. no. 45603/05, decision 18.6.2009.

[55] Stec and others/ the United Kingdom, appl. nos. 65731/01 and 65900/01, decision 6.7.2005.

[56] Larioshina/Russia, op.cit. See, in general, ECtHR, Seminar Background Paper, 25 January 2013, Implementing the European Convention on Human Rights in times of economic crisis, http://www.echr.coe.int/Documents/Seminar_background_paper_2013_ENG.pdf; Steering Committee for Human Rights (CDDH), The impact of the economic crisis and austerity measures on human rights in Europe, Feasibility study, 84th meeting 7 – 11 December 2015, CDDH(2015)R84 Addendum IV, http://www.coe.int/t/dghl/standardsetting/cddh/CDDH-DOCUMENTS/CDDH%282015%29R84%20Addendum%20IV_EN.pdf

[57] “Vorbehalt des Möglichen”. See, for this doctrine in constitutional law Perlingeiro R., Does the precondition of the possible (Vorbehalt des Möglichen) limit judicial intervention in social public policies? NLUO Law Journal, vol. II, issue I, August 2015, pp. 20-45.

[58] Da Silva Carvalho Rico/Portugal, appl. no 13341/14, decision 1.9.2015, par. 44.

[59] Da Conceiçã Mateus and Santos Januário/Portugal, appl. nos. 62235/12 and 57725/12, decision 8.10.2013

[60] Savickas and Others/ Lithuania, appl. nos. 66365/09 et al., decision of 15.10.2013.

[61] The dissenting judges contented that the majority has expanded the scope of the right to property, since article 1 of Protocol No. 1 has never been interpreted “by this Court as obliging member States to provide persons with the right to social security benefits, in the form of disability pensions, independently of their having an assertable right to such a pension under domestic law”, Béláné Nagy/Hungary,appl. no 53080/13, judgment 10.2.2015, joint dissenting opinion of judges Keller, Spano and Kjølbro, para. 1.

[62] Priewe J., What went wrong? Alternative interpretations of the global financial crisis, in UN Conference on Trade and Development – Hochschule für Technik und Wirtschaft Berlin, The financial and economic crisis of 2008-2009 and developing countries, 2010, p. 17-18.

[63] Dullien S., Kotte D., Márquez A., Priewe J., Introduction, in UN Conference on Trade and Development – Hochschule für Technik und Wirtschaft Berlin, The financial and economic crisis of 2008-2009 and developing countries, 2010, p. 1.

[64] Priewe J., What went wrong? Alternative interpretations of the global financial crisis, op.cit.

[65] See for further details and legal documents, http://www.efsf.europa.eu/about/index.htm

[66] T/ESM 2012-LT/en.

[67] See for relevant information and legal documents, http://www.esm.europa.eu/index.htm

[68] Garcia Pedraza P., Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms, Institute for Human Rights, Åbo Akademi University, 2014, p. 7.

[69] Skogly S., The human rights obligations of the World Bank and the International Monetary Fund, Cavendish Publ. Ltd, London/Sydney, 2001.

[70] In October 2009, the incumbent greek government discovered a high fiscal deficit amounting to 15,7% of GDP and a public debt amounting to 129,7% of GDP. These unexpected high numbers resulted in the downgrade of Greece’s sovereign debt by Fitsch, Standard & Poor’s and Moody’s which had as a consequence the inability of the government to receive funding from the financial markets. See for a brief account of the facts, ELSA, International legal research group on social rights, Final report: austerity measures and their implications. The role of the European Social Charter in maintaining minimum social standards in countries undergoing austerity measures, July 2015, pp. 647-648.

[71] The assistance was finally provided on the basis of article 143 TFEU according to which when a member state is in difficulties regarding its balance of payments either as a result of an overall disequilibrium in its balance of payments or as a result of the type of currency at its disposal and where such difficulties are liable to jeopardize the functioning of the internal market or the implementation of the common commercial policy, the Commission shall recommend to the Council the grant of mutual assistance.

[72] ESM Programme for Greece, http://www.esm.europa.eu/assistance/Greece/index.htm.

[73] See in that respect P7_TA(2014)0239, Role and operations of the Troika with regard to the euro area programme countries, European Parliament resolution of 13 March 2014 on the enquiry on the role and operations of the Troika (ECB, Commission and IMF) with regard to the euro area programme countries (2013/2277(INI)).

[74] Law 3833 of 15 March 2010, Law 3845 of 6 May 2010, Law 3847 of 11 May 2010, Law 3863 of 15 July 2010, Law 3865 of 21 July 2010, Law 3866 of 26 May 2010, Law 3896 of 1 July 2011, Law 3986 of 1 July 2011, Law 4002 of 22 August 2011 and Law 4024 of 27 October 2011, Law 4046/2012, 4051 of 28 February 2012, Law 4093/2012 of 12 November 2012, Law 4172/2013. Joint Ministerial Decision 6/28.02.2012

[75] See for a detailed description of the measures adopted, ELSA, International Legal Research Group on Social Rights, Austerity measures and their implications. The role of the European Social Charter in maintaining minimum social standards in countries undergoing austerity measures, July 2015, pp. 646-754.

[76] See for a general reference to Europe, Poulou A., Austerity and European Social Rights: How Can Courts Protect Europe’s Lost Generation?, 15 German Law Journal, 2014, pp. 1145-1176; Jimena Quesada L., Adoption and rejection of austerity measures: current controversies under European law (focus on the role of the European Committee of Social Rights), Revista catalana de dret públic, núm 49, 2014, pp. 41-59.

[77] Committee on Economic, Social and Cultural Rights, General Comment No. 19,The right to social security (art. 9), E/C.12/GC/19, 4.2.2008, par. 15.

[78] Koufaki and Adedy/Greece, appl. no 57665/12 and 57657/12, Decision 7.5.2013, par. 31, 41, 44-46.

[79] Federation of employed pensioners of Greece (IKA-ETAM) v. Greece (no. 76/2012); Panhellenic Federation of public service pensioners v. Greece (no. 77/2012); Pensioner’s Union of the Athens-Piraeus Electric Railways (I.S.A.P.) v. Greece (no. 78/2012); Panhellenic Federation of pensioners of the public electricity corporation (POS-DEI) v. Greece (no. 79/2012); and Pensioner’s Union of the Agricultural Bank of Greece (ATE) v. Greece (no. 80/2012). All decisions on the merits were rendered on 7 December 2012.

[80] Resolution CM/ResChS(2014)7 et seq. adopted by the Committee of Ministers on 2 July 2014 at the 1204th meeting of the Ministers’ Deputies.

[81] C-98, 28.2.2003.

[82] ibid. §95.

[83] With regard to the right to property it stated that it should not be interpreted as giving right to a pension of a determined amount, §33 (with further references to the Court’s case-law).

[84] Five pensioners, op.cit. §97.

[85] ibid. §98.

[86] ibid. §102.

[87] ibid. §116.

[88] See in that respect the judgment of the European Court of Human Rights in Koufaki et ADEDY/Greece, op.cit.

[89] Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”)/Peru, C-198, 1.7.2009.

[90] ibid. §147. See, also the Reasoned Concurring Opinion of Judge Sergio García Ramírez.

[91] However, in case Acevedo Buendía (§106) that followed it did not find a violation of article 26 ACHR, stating that the issue under consideration was not a measure adopted by the State that hindered the progressive realization of the right to pension but it was rather the non-compliance of the state with the payment ordered by the domestic courts. Therefore, the violated rights were only the right to amparo and the right to property. This was a landmark judgment in that the Court, shortly after the adoption of the Optional Protocol to the ICESCR, emphasized the existence of the “principle of non regression” regarding the limitations in the exercise of a right, Burgorgue-Larsen L., Úbeda de Torres A., op.cit. p. 632-635.

[92] With a view to ensuring the effective exercise of the right to a fair remuneration, the Contracting Parties undertake: 1 to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living; 2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases; 3 to recognise the right of men and women workers to equal pay for work of equal value; 4 to recognise the right of all workers to a reasonable period of notice for termination of employment; 5 to permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards. The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage fixing machinery, or by other means appropriate to national conditions.

[93] General Federation of Employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece (no. 65 and 66/2011), decision on the merits of 23 May 2012, “As such, the provisions of Section 74§8 of Act 3863/2010, and now Section 1§1 of Ministerial Council Act No 6 of 28-2-2012, are not in conformity with Article 4§1 in the light of the non-discrimination clause of the Preamble of the 1961 Charter”.

[94] Committee of Ministers, Resolution CM/ResChS(2013)3, Adopted by the Committee of Ministers on 5 February 2013 at the 1161st meeting of the Ministers’ Deputies.

[95] C-223, 4.3.2011.

[96] ibid. §53.

[97] ibid. §64.

[98] ibid. §82.

[99] ibid. §§84-85. The case was recently closed (21.6.2013), when the last payments were received. The remedies for material and moral damages, costs and expenses, as a whole, amounted to a total of nearly 3 million dollars, see Resolución de la Corte Interamericana de Derechos Humanos, 22.5.2013, Caso Abrill Alosilla y otros vs. Perú, Supervisión de Cumplimiento de Sentencia.

[100] There is no doubt that the IACtHR case-law has been influenced a great deal by the enlightened long-year presidency of judge A.A. Cançado Trindade, who is a dedicated figure of the “human face” of international law, see in particular his book, “Le droit international pour la personne humaine”, Pedone, Paris, 2012.

[101] Judgment no 1906/2014, 28.5.2014.

[102] Realising the human rights to water and sanitation: A Handbook by the UN Special Rapporteur Catarina de Albuquerque, 2014, Book 6: Access to justice for violations of the human rights to water and sanitation, p. 9.

The Discourse on Human Rights and the International Regime of Human Rights

Introduction

The controversies surrounding the rights and freedoms which we are entitled to have complex sides, and often depend on the justification used for recognizing the rights. The common justification used in defense of these rights is our nature, which again triggers many other questions.  Do we have unique attributes justifying the recognition of certain rights? Is the human being a social being or a self-centered, autonomous unit? Is s/he a nice or humane person? If the latter is not the case why punish inhuman or cruel behavior? Who is to decide what the requirements of the state of nature are for purposes of forming the human rights law, and how? Should this be left to religion, culture, reason, governments or the requirements for survival? Is the human rights talk basically a religious talk? Is it essentially a political subject-matter? Do human rights exist? If they do, are they universal, to be interpreted and applied in the exact same ways globally, or are they relative – to be harmonized with the local religious, cultural, political and other requirements? How were these questions answered by the international community when it developed the international regime of human rights?

The existence of the international community itself is sometimes questioned, especially by the adherents of realpolitik, mainly because there is no centralized legislative and law enforcing body. Instead, the skeptics speak of the presence of ‘international societies’ and the anarchical international order. Yes, international law is weak because its foundation is state sovereignty, and it lacks a centralized law-enforcing body. However, that in itself does not prevent the emergence of an international community. No one denies that international law is disregarded by some or many states now and then. Individuals and political actors too violate or disregard national laws, yet, we hardly question the existence of these laws or the national communities when this happens. Just as national laws and national communities are socio-political constructions, international law and the international community too are socio-political construction that exist because we need them.

The fact remains that the overwhelming majority of states use international law on a daily basis – to facilitate trade and commerce, to regulate health issues, to facilitate communication, to stimulate tourism, to promote educational, cultural or other activities. All the sovereign states are members of the United Nations, and meet regularly to discuss matters of common interest. This organization has clear-cut purposes and principles and monitoring bodies. It is true that the system is based on state sovereignty (article 2(1) of the Charter). However, there is also the requirement to comply in good faith with obligations assumed under the ratified legal international instruments (art. 2.2 of the Charter). Failure to do so has political consequences, because disruptive or anarchical conducts are not accepted. When international peace, security and order are threatened, the UN Security Council is required to respond to restore the international order (collective security). Its decisions are binding on all states (articles 24 and 25 of the Charter). The UN and its members have always proceeded on the assumption that there is an international community that is legally formed.

The UN is not the only international organization that is responsible for the international regime of human rights. The International Labour Organization, UNESCO, WHO, FAO, regional organizations and non-governmental ones too influence the direction in which the regime of human rights regime is developing. ILO uses more than 180 conventions related to economic and social rights (and recommendations), more instruments than those adopted by the UN. The same can be said about the mandates, laws and activities of the other specialized agencies. Their relationship with the UN is coordinated by the UN Economic and Social Council, as provided by articles 63 and 64 of the UN Charter. Regional organizations and non-governmental organizations also cooperate with these agencies and with the UN even if they have their own human rights mandates, bodies and activities. While it would be wrong to claim that there is no tension in how all these organizations operate when pursuing their respective human rights agendas, the differences that exist are sometimes exaggerated.

The existence of the international regime of human rights is questioned or belittled mostly because of skepticism towards international law. The factors which speeded up the evolution of international human rights law are linked to the horrors endured during World War II. The peoples of the world were alarmed by the grotesque instances of inhumanities and the sufferings of that time as well as by the disorder and devastation that accompanied it, evils which took the lives of well over one hundred million people. By the end of that war, the insecure and militarily exhausted states, including the victorious powers, had to take a pause for soul searching to find the formula for ensuring lasting peace and stability without sacrificing human values. It was abundantly clear that the ideological and political goals of the aggressive powers were hostile to the human rights values. There was no international human rights regime in place to challenge their conduct. The earlier organizations were not fit for this, which is why the Concert of Europe or the League of Nations failed to guarantee international peace and justice. If the new international organization that was contemplated for the post-World War II era was to be legitimate and endure, it had to embrace human rights values. The only problem ahead was on whose image this world order should be shaped. Both the Western and the Eastern powers were determined to use their political and diplomatic weapons to win the hearts and minds of the peoples of the world.

The drafters of UN Charter justified the universal promotion of human rights based on “faith in fundamental human rights, in the dignity and worth of the human person (and), in the equal rights of men and women”. Now that the professed racist powers were militarily crushed, it became inconceivable to tolerate the kinds of inhumane political systems these states once had or to resist the emergence of an international order based on the promotion of respect for human rights. It is true that the Allied Powers were forced to enter that war for self-defense rather than in opposition to racist policies and conducts. However, once the war was in full swing, the narratives had changed to that of a military campaign against Fascists and Nazis and their sympathizers: a struggle between good and evil (progressives and reactionaries).

The inscription of human rights in the UN Charter, in 1945, transformed the idea of human rights from a philosophical and national legal concept to a universal legal concept. The UN was also given the mandate of “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (article, paragraph 3) More specifically, its General Assembly, and the Economic and Social Council, under it were assigned to promote: “Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex,    language, or religion.” (art. 55, and 60. Emphasis added).

Further, the members of the UN gave their pledge, under article 56, “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Although the political and legal pillars for constructing the international regime of human rights were clearly made, in 1945, it took time before this regime emerged since it could not operate without defining the rights and obligations and developing the monitoring mechanisms.

The UN Charter does not list the human rights that should be acknowledged, although reference is made, in broad and vague ways, to the obligations to respect the principle of equal rights (art. 1(2), 1(3)) and some of some economic and social rights (article 55, 73 and 76), especially in the context of the dependent territories (colonies). The task of preparing the document which lists these human rights was left to the General Assembly which was expected to initiate studies and make recommendations for “the progressive development of international law and its codification” and “assisting in the realization of human rights and fundamental freedoms” (art. 13.1.a. and c. of the Charter).

When the UN started to prepare the first universal instrument which would identify, define and proclaim the human rights that should be recognized (by the Universal Declaration of Human Rights) the ideological controversies relating to discourse on human rights surfaced in highly politicized ways. As expected, the Western states defended the individualized civil and political rights in line with their national laws and political traditions. The Socialist states propagated for economic and social rights, loyal to the Marxian traditions. The Latin America states stood behind the Western position since they had similar political systems to that of the West. The Organization of the American States even proclaimed its own Declaration on the Rights and Duties of Man before the UN proclaimed the Universal Declaration of Human Rights. Most of the remaining Third World countries backed both positions, although they were worried about the political implications of some of the political rights. Since it was known from the outset that this instrument was not intended to be legally binding (because under article 10 of the Charter the UN General Assembly resolutions are only recommendatory) the insertion of both these sets of rights did not prove to be problematic. After all, as the last paragraph of this Declaration makes it plain this instrument was to serve merely “as a common standard of achievement …to promote respect for these rights and freedoms and by progressive measures… to secure their universal and effective recognition and observance”.  Still, the six Socialist States, South Africa and Saudi Arabia abstained when the Universal Declaration was proclaimed on 8 December 1948.

Using this new standard setting, the UN General Assembly proceeded to prepare and adopt other non-binding declarations which were intended to provide protection from race and gender-based discrimination and to defend the rights of the members of vulnerable groups, such as, children, refugees, the disabled, etc. While these instruments defined the rights of the beneficiaries and mentioned the kinds of measures that should be taken to make them practical, they lacked the enforcement mechanisms precisely because they were not perceived to be legally binding.[1] Later, however, this ‘soft-law’ political approach was complemented by preparing and adopting binding human rights conventions which came into force through ratification.[2]

We now have not only an international regime of human rights which uses international law, but also two separate paths to monitor how states conduct themselves in accordance with their  human rights obligations. The convention-based monitoring bodies consider the reports of states submitted pursuant to the ratified legal instruments and publish their reports. They also examine the petitions sent by victims and state parties who allege the existence of human rights violations, provided that the concerned state has accepted this system. The UN Charter-based monitoring bodies consider the reports of states and those submitted by states, by special rapporteurs (country-rapporteurs and thematic rapporteurs), by working groups and others. Bearing this in mind the UN Human Rights Council publishes country reports on the human rights situation inside states. The High Commissioner for Human Rights represents the UN on matters concerning human rights also by visiting states, conducting inquires or fact-finding missions, to inspire states to ratify human rights instruments, etc.. The UN High Commissioner for Refugee follows developments concerning refugees, including when it comes to mobilizing contributions for the welfare of refugees, urging states to share the burden of accepting refugees and ending the involuntary deportation of asylum seekers whose lives could be endangered. There are many other UN offices, units and programs that also provide important functions or monitor human rights issues. Among these are UNICEF, World Food Programme, UN-Habitat, and the Commission on the Status of Women. Complementing these are also the human rights mechanisms that are used by the specialized agencies and the regional organizations.

With all this evidence at hand, it is difficult to deny that we now have an international regime of human rights which is politically and legally constructed in the process of giving effect to the purposes and principles of the UN Charter. This regime governs how states behave in the field of human rights by monitoring the application of the adopted international instruments. This is not to deny that this regime has weaknesses emanating from the absence of centralized legislative and enforcement bodies. If the existence of regimes is measured on the basis of the strength of the applicable laws or the strength of the monitoring bodies and mechanisms of these laws, then the existence of many national regimes would also come to doubt. Clearly, there is a long way to go before one is fully satisfied and the political roads ahead may not be that smooth. Bridging the ideological and political gaps surrounding the human rights debate is far from easy. But it is equally important not to forget or deny what has been achieved. The UN has managed to navigate through the past troubled waters. How this was done will be clarified later after first examining closely what the contentious ideological and political positions are.

The discourse on human rights

Right: As can be seen from the long list of definitions provided in dictionaries the word ‘right’ is understood differently depending on the context in which it is used. Its adjectival usage means accurate or correct (as in the ‘right answer’), exact or perfect (as in it ‘fits right’), reasonable or sound (‘right mind’), immediate (‘right now’), fair (‘right share’). It is also used to describe directions (the opposite of left) including political or ideological stands (as in ‘right wing’).[3] Its noun form (‘a right’) denotes title, privilege, guarantees, power officially recognized.[4]  The New International Webster’s Comprehensive Dictionary of the English Language adds one other definition of a right which is described as that which is given “in accordance with or conformable to moral law or to some standard of rightness; equitable; just; righteous… ”[5]

Indeed, most leaders want to convince us that the rights which are recognized in our national laws have a just character or are also correct, morally speaking. This, however, may not always be the case, since a right that is sanctioned by law or culture can be wrong morally speaking, depending on the frame of reference one uses. The right to buy and sell human beings, which was legally recognized in some countries in the past, or that which tolerates the freedoms of men to ‘buy sex’ from desperate women is morally wrong. The justness of the traditional rights of parents to arrange for the marriages of minors or that of a man to inherit the wife of his deceased brother in accordance with cultural norms or traditions in some countries, are equally questionable. It is interesting to note that these rights continue to be exercised although there are also laws which require full consent for marriage in these states. In other words, one observes a certain tension between rights that are derived from culture and traditions and those emanating from laws.

Human: One of the reasons why scholars disagree on the kinds of rights and freedoms that should be acknowledged is the divergence of views on the nature of the human being and hence on what is due to him/her as just. Inseparable from this is the requirements of responding to order and stability when living in social settings. For Thomas Hobbes (1588-1679) human beings were, by nature, evil-minded, ego-centric, jealous and power-driven individuals. Although he starts by accepting the existence of ‘natural rights’ he concluded by calling for their surrender – in favor of a chosen despot for the sake of peace and the general welfare. If this is not done, the cycle of envy, hatred and competition would only further war of all against all.[6]

Hobbes’s premise was rejected by Immanuel Kant (1724-1804) because it reduced the state of nature to “a state of absolute injustice, as if there could have been no other relation originally among men but what was merely determined by force…””[7] For Kant to relinquish the natural inborn rights amounts to relinquishing being human. The purpose of civil union should therefore be to protect those “inborn” rights based on social contract by ensuring “the right of every citizen to have to obey no other law than that to which he has given his consent or approval.” ”[8] His thoughts were inspired by the positive impression that John Locke (1632-1704) had concerning human nature, and his call for the protection of natural rights. As Locke saw it, the aggressive behavior which Hobbes noted were only consequences of defying the demands of nature to respect life, liberty, possession and other interests which create self-defense, retribution and hence disorder. .[9]

Theologians consider humans as social creations that should live in peace and harmony, and that have duties towards one another (inside their communities). Since religion also prescribes what the acceptable rights and duties are, theologians see the talk about human rights as basically a religious talk.[10] For Christians, this means following those Divine commands stipulated in the Bible. For Moslems, it is that which is provided by the Islamic Shari’ah and the “divine commands, which are contained in the Revealed Books of Allah.”[11]

Atheists and most liberals or libertarians do not subscribe to this point of view for different reasons. For atheists religion is fictitious, and man’s creation. Liberals and libertarians are interested in empowering individuals by maximizing the enjoyment of individual freedoms, rather than restricting them. According to Ayn Rand (1905-1982), rights emanate from ‘man’s nature’ (‘the law of identity’). She considered them to be “the property of an individual”, and “a man’s freedom of action”[12], which are used to secure the “human good”, including the protection of selfishness without requiring sacrifices for anyone. [13] This is why she insisted that right should always be articulated as individual freedom of action and thus as something individualized.[14]

Socialists approach mankind as social. Egocentric and inhumane characteristics are inherited from the conditions of life, rather than being natural attributes. As Karl Marx (1818-1883) saw it, Hobbes had confused class war with ‘war of all against all’ and wrongly linked the conflicts which he observed with the state of nature. Although Marx was in full agreement with Rousseau’s observation that mankind was born free but lived in chains, he rejected Rousseau’s prescription calling for defending ‘the rights of man’ because these rights were framed in the context of the appropriation of private property inside the political state. For him, as long as social relations are based on private property relationships, we can only behave as representatives of property. These rights, as articulated by Rousseau and the other supporters of the capitalist order, should be rejected because they do not “go beyond the egoistic, man as he is, as a member of civil society; that is, an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interests and acting in accordance with his private caprice.”[15]

Human rights: sources/foundation/origins. The sources, foundations or origins of human rights are generally approached from the perspectives of the two opposed schools of thoughts: Natural Law and positivism. Proponents of the former are sub-divided between those who follow the spiritual line (Divine Law) and the secular path (higher reason or morality). The former is defended by theologians who rely on religion as the primary source for valid rights, freedoms and duties. For them conducts and social relationships that defy the tenets of religion constitute sins that are punishable. There is no room for fetish-driven ways of living, and deviations determined by individual morality. Even if the law permits this by protecting the right to privacy, it should not be followed for such laws are not proper “but a corruption of law.”[16]

Natural Law is also defended on secular grounds by those who invoke “higher reason” or “rational nature” – from which concepts such as justice, equity, modesty and the likes are derived from.[17] Thomas Hobbes used this when he defended the existence of natural liberties and freedoms in the state of nature, and which he wanted us to surrender in favor of despotism for the sake of peace and order.[18]  John Locke too believed that we had inherent rights, such as those protecting life, liberty and property, those that should not be taken away.[19]  Kant distinguished between natural or innate rights and positive or acquired rights. He called the former innate rights, derived from “practical laws of reason” and that constitute “the Birthright of Freedoms” of every person..[20] He approached natural rights from “a pure practical conception of the reason in relation to the exercise of the will under laws of freedom”[21], as those that should neither be restricted nor denied by man-made constitutions since they are “deduced from principles a priori as the condition of such a constitution.” [22]

Liberals and libertarians vigorously defend individual liberties because the ontological core of their school of thought is individualism. “It is from this premise that the familiar commitments to freedoms, tolerance and individual rights are derived.” [23] Their point of departure may vary but the end point is similar in that both see individual rights as inalienable. “If we are serious about the idea of human rights,” maintained Jack Donnelly, “there is no alternative to holding firm on the principle that they are the rights of individuals and of individuals only.”[24] Rand, a libertarian, offered the following explanation: “If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his value and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being; nature forbids him the irrational.”[25]

Rand was unapologetic in defending individual morality, in praising unregulated capitalism and in dismissing group rights or economic, social and cultural rights not least because they are ‘solidarity’ rights that are financed by unjustly sacrificing individual rights (through heavy tax) to benefit others. According to her:

“There is no such thing as ‘a right to a job’ – there is only the right of free trade… no ’right to a home’ …There are no ‘rights to ‘fair’ wage …There are no ‘rights’ of special groups’ … There are only the Rights of Man…Property rights and the right of free trade are man’s only ‘economic rights’ (they are, in fact, political rights…)”[26]

In essence, the position which regards the individual as autonomous unit and which questions his/her social nature consider human beings very much like finished industrial product like a car or a piano that is ready to operate, as if we are not continuously enriched or developed mentally and emotionally from birth to death. If we are not social how do we end up possessing linguistic, religious and cultural identities? How can loyalty, nepotism, fanaticism, social prejudice, racism and extreme nationalism be explained? Why bother to take part in cultural festivities, or pay a high price for expensive cars, cloth, perfume or watches or get satisfaction from providing altruistic or humanitarian assistance? Why use prison for punishment (including for offending ‘public morality’)? Why bother about problems emanating from social isolation? The fact remains that a person who is totally isolated for too long from others can end up being mentally derailed – if not suicidal.

Communitarians reject the liberal and libertarian viewpoints of the autonomous nature of the individual. Instead, they proceed from the premise that all individuals derive their identity and wellbeing from their social environment.[27] “The highest conceivable form of human society”, according to Huxley, “is that in which the desire to do what is best for the whole, dominates and limits the action of every member of the society.”[28] Those who reject the social nature of mankind are not only dishonest since they know how social they are, but are actually hiding behind individualism for purposes of obstructing the efforts that are made to protect and promote the rights of those marginalized groups.[29]

Positivists dismiss inalienable natural rights as nonsense. According to Jeremy Bentham, the father of positivism, the proponents of Natural Law are very good at fabricating fictitious rights and ‘laws’ using passions.[30] Real rights exist only in the political world and are recognized and enforced by laws. “There are no rights without law”, he wrote, and “no rights contrary to the law.”[31] For Bentham, governments were established because there are no rights “anterior or superior to those created by the law”[32] Legal rights which are enacted by governments determine legitimate freedom of action and the enjoyment of the benefits to be given to the right-holders.[33]  To be practical, ‘right’ would have to be complemented by obligations, and when the latter are violated they become offenses.[34]  In short, “law, offence, right, obligation, service, are therefore ideas which are born together, which exist together, and which are inseparably connected. …”[35]

Karl Marx appreciated the manner in which Natural Law was ridiculed by Bentham. He also discredited Bentham for accepting the legitimacy rights made by governments. This was why he dismissed his intellectual contributions as nothing more than a “pedantic, leather-tongued oracle of the ordinary bourgeois intelligence”[36] As Marx saw it, the political state enacts laws recognizing rights and freedoms to protect the interests of the oppressing class by subordinating the oppressed groups. The kinds of rights which Marx and his followers endorsed were those that helped the proletarian class in achieving their revolutionary goals. They also supported national self-determination as a means of bringing about emancipation from their oppressive, alien rulers. Marx did see the advantages in the few ‘illusive’ ‘rights of man’ proclaimed by the American and French revolutionaries, except those that can be used to speed up the proletariat’s revolution.[37] The writings and campaigns of Karl Marx and his followers did serve as powerful engines for stimulating the revolutionary changes seen in Europe, during the second half of the 19th century, including the emergence of national states.

The divergent approaches to the definition. With so many differences in the perception of the sources, justifications, objectives and nature of human rights, the definition of ‘human rights’ can only be confusing, to say the least. Much depends on which side one takes when speaking about this contentious subject. Thomas Perry understood this subject in the religious sense, calling it a religious talk.[38] Jack Donnelly saw it as a set of socially constructed “moral claims” relating to entitlement “held by all human beings simply because they are human and exercisable against the state and society” and that is used to shape “social and political relations.”[39] According to R.J. Vincent, these rights represent “the moral possessions to which all human beings are entitled, and each of them equally.”[40] For Alan Gewirth they constitute “a species of moral rights” or requirements that are derived from valid moral principles.[41] And in the opinion of Justice Stayton this “means nothing more nor less than a claim recognized or secured by law.”[42]

One of the reasons why writers link claims to rights is their desire to give the kinds of practical support that strengthens rights. “Having rights, of course, makes claiming possible; but it is claiming that gives rights their special moral significance …”, states Feinberg. “Having rights enables us to ‘stand up like men’, to look others in the eye, and to feel in some fundamental way the equal of anyone.”[43] Claim is here given a normative character, as if right cannot stand without it. Feinberg also admits “(I)t will not help to attempt a formal definition of rights in terms of claims, for the idea of a right is already included in that of a claim, and we would fall into a circle.”[44]

The academic rivalry. Because human rights are explained in political, philosophical, religious, moral, legal and other senses, the disciplinary rivalry to claim it or to exclude others is serious. There are philosophers who take pride in the roles played by earlier philosophers in elucidating and popularizing this concept, a task which requires the input of contemporary thinkers. Jurists are happy that human rights are regulated by laws, not least because this fact makes them the only competent experts in the field. As one professor of politics, David Beetham, conceded “all these are eminently suited to analysis from a legal perspective” and “political science as a whole should have preferred to keep the subject at arm’s length.”[45]

For Michael Freeman the concept of human rights cannot be seen outside the political framework since these rights are “made and interpreted by a political process”, which is why he warns legal positivists not to be carried away by legal stipulations alone: “He maintains:

“The legal-positivist approach to human rights not only misrepresents their character but also has dangerous implications. …Legal positivists sometimes say that the only rights are those that are legally enforceable … it is not necessary that they should be so, and the concept of human rights implies that often they are not.”[46]

There are social scientists, especially social workers, that have expressed regret over the attempts that are made to exclude them from this field. According to Professor Elisabeth Reichert, a professor of social work, “Not only are politicians muddying the waters regarding human rights, but lawyers, too, speak of human rights in legalese that is more applicable to the courtroom or an academic treatise than to everyday life”[47], stated one professor of social work, Professor Elisabeth Reichert. In her view, “social workers have at least as much claim to the exercise of human rights principles as do politicians and lawyers.” [48]

Universalism and relativism: The debate relating to this topic may be intellectually stimulating but it is also politically divisive and toxic. This is not simply because it is approached with emotionally charged arguments, claims and acrimonious language, but also because the ideological and political interests behind the debate are obvious. The roots of most of these controversies go back to the familiar core issues concerning who the human being by nature is, what the sources, foundations and origins of human rights are, and the weight that should be given to cultural values. We shall lift forth three core issues around which most of the past debates have been rotating. These are i., whether there are inalienable or fundamental rights that should be accepted as universal and others that are relative; ii. whether there is a room for interpreting the rights recognized in the international regime of human rights bearing in mind the requirements of local religions, cultures, traditions, and the economic and political conditions, and iii., whether the origins of human rights are to be traced only to Western ideals and traditions alone and if, assuming that that is the case, whether this Western model should serve as a universal model for rights.

Before addressing these issues, it is necessary to identify who is behind the opposing camps. The literature on this subject reveals that universalism is strongly supported by the Western countries and echoed by most Western scholars. Relativism is vehemently defended by the governments of Third World countries and scholars engaged in the subject. However, this simplistic division can be misleading there are Western scholars that share the views of moderate relativists, as there are Third World relativists who defend aspects of universalism. This in itself reveals the existence of a third front which seeks a middle-of-the-road approach to reconcile the two extreme positions. Interestingly enough, one also notices a meeting point where the extremists on both sides converge, as will be explained later.

Linked to the issue of avoiding the dangers of oversimplification is the problem of how to interpret the word ‘Western’. Is this a geographic designation? If so, who is included in and who is excluded from this understanding of the term? Can Marx be included in the Western camp, as some claim [49], even when though his writings were so hostile to Western capitalism and to individual rights? For him, his writings were ‘scientific’, derived from the use of dialectic and historical materialism which any other person from any corner of the world could have written. If the term ‘West’ designates an ideological tradition, should the countries of Eastern Europe and Russia and all of the Latin American countries be included?

This is not to suggest that there is no such a thing as ‘the West’. In our political world we do see political camps and a harmonization of policies between states described as ‘Western’, ‘Eastern’, ‘Non-Allied Nations’, etc. also when human rights approaches or issues are debated at the universal forum. We have regional organizations, such as the European Union, the African Union and the Arab League operate, and these groups also join like-minded ones outside their own organizations when they operate in defense of their common interests. However, equally important to note is that reducing the discourse on human rights to issues of political confrontation between the West and the rest could blur the complex nature of this subject. Regrettably, this is how this debate has been used and this is how we shall proceed in approaching it now.

Universal human rights is presented by most Western writers and governments as that originated from the West and which reflects Western ideals, values and traditions. As Sir Stephen Sedley understood it, “human rights are historically and ideologically the property of the liberal democracies of the West”[50] According to Forsythe, “human rights as intellectual construct … was indeed associated with the west.”[51] Jack Donnelly traced this to European writings, ideals and values, those which entered “the mainstream of political theory and practice in seventeenth-century Europe.”[52] Michael Freeman pin pointed this to“(T)he first systematic human-rights theory” as formulated by John Locke who ”assumed that God was the ’source’ in question.”[53] The proponents of this position also dismiss the notion that non-Western societies have contributed to the human rights concept as “historically inaccurate.”[54] Underscoring this same position, Forsythe wrote: “Other regions or cultures displayed moral principles and some movements in favor of some version of human dignity but they were not grounded in a right discourse”[55]

More concretely, Donnelly described the nature of these rights which have originated in Europe and which should be regarded as universally valid as those that are: “inalienable rights: one cannot stop being a human being, and thus cannot stop having these rights … (they) rest on and seek to realise a particular conception of human nature, dignity, well-being, or flourishing. Human beings are seen as equal and autonomous individuals rather than bearers of ascriptively defined social roles”[56]

The refusal of non-Western governments and writers to endorse the position above has been viciously attacked by some of the proponents of universalism. Rhoda Howard, for example, had difficulties in understanding why African elites have “to adopt a defensive posture, arguing for the uniqueness of African culture, to explain why Africa cannot implement all of the Western and United Nations’ ideals of human rights”.[57] As she saw it: “The advocacy of a theory of African communalism by African intellectuals may well be in their own self-interest. In general the defence of ‘indigenous’ customs by African intellectuals may facilitate their ‘big-man’ domination over local groups who find their cherished value threatened.”[58] Likewise, discrediting the arguments used by the Asian leaders and intellectuals who defended “the Asian value”, Michael Freeman stated: “Many individuals and groups throughout history have claimed to speak for ‘the people’, but we have theoretical and empirical grounds for being quite skeptical of such claims. Theoretically, elites may well lack the capacity to understand the culture of the people and may well lack the incentive to understand it. Empirically, we know that elites have commonly been unconcerned with, or hostile to the culture of the people.”[59] Endorsing this position Jack Donnelly calls the defense which the leaders and elites of the Third World countries as ”cynical manipulations” since they themselves often embrace the Western ways of life..[60]

Relativists dismiss the premises and conclusions made by universalists to market the Western model of human rights to the rest of the world. According to them, if Europe is the origin of human rights just because John Locke and the others Western Natural Law thinkers wrote about it, then the sources of rights are incorrectly presumed to be these writers, when what they wrote claim that rights are derived from nature or the Creator. If the latter is the case, the origin of human rights cannot be geographic, as if rights are patented products. Relativists did not question the significance of the contributions made by Western thinkers for the evolution of the human rights that are recognized in the West or for the political process that led to the emergence of the Western model of rights. What they are saying is that the six thousand or so societies outside the West too had their own thinkers and have constructed their own models of human rights reflecting their needs and interests.

The other problem with the approach taken by Universalists in this regard is their refusal to accept the validity of collective and group rights that are acknowledged by non-Western cultures just because they differ from the individualized approach to rights. If human ideals, aspirations and values are derived from morality, as most of the defendants of universalism maintain, there must surely be different ways of constructing human aspirations, rights and obligations based on the prevailing conditions and mores, other than those which work in the West. The fact remains that different societies use different types of moral codes. What is acceptable in one place is not necessarily acceptable elsewhere.

Viewed from this perspective, it is not difficult to understand why scholars from the non-Western societies feel offended by some of the remarks that are made discrediting relativism and belittling the significance of the non-Western value systems for human rights. “Before seeking to criticize practices in another culture in the name of human rights” stated one Nigerian professor, “one should ask how we might feel if people from other cultures questioned practices within our own cultural community.”[61] As these scholars see it, respect for social values and the collective interests have crucial importance and are linked to the enjoyment of economic, social and cultural rights. Without the latter, human dignity and worthiness cannot be guaranteed. This is also why most Third World scholars regret to read many Western writings without understanding the very context the peoples in the Third World live. Professor Hountondji from the University of Benin, wondered:

“Who has decided from now on, human history must reproduce everywhere the choices or, at best, the alternatives of European history, that these alternatives were the only ones imaginable and practicable…?”[62]

As this scholar saw it, individual morality as appreciated in many Western societies is at odd with the collective morality valued in African societies. The distinction between these two value systems should not be belittled, since in the African societies:

“[T]he individual is nothing in himself and has value only when linked to his people. Above the rights of man is therefore the right of peoples. No conflict between these two orders can be tolerated: the individual has rights only in so far as he fulfils his obligations towards his people, and wherever there might be a conflict, the rights of the individual must naturally be sacrificed. What is more, it is not Europe’s role to dictate to us what we ought to do. It is in our traditional cultures themselves, in the standards and values they have bequeathed to us.”[63]

According to Professor Ife, the calls of some of the universalists urging the absorption of the Western model human rights by the Third World, represents a dangerous, dubious and ‘one-directional’ positivist worldview, one that “raises the danger of colonialism”[64] Ife, like other moderate relativists, supports universalism as long as its tenets take into consideration the particular regional characteristics and priorities. Bearing this in mind, he calls for a dialogue where one is prepared to listen to and learn from the other side, instead of assuming that one knows all the answers to controversial questions. By such an approach one could be better equipped to appreciate “what it means to be human and what it is that we value in our own humanity and that of others.”[65]

As stated earlier, there are many Western Universalists that are sympathetic to the concerns of relativists. R.J. Vincent, an ardent defender of universalism, for instance, concedes that the moral and political dilemma which universalism poses are obvious. “After all, “the argument provided by cultural relativism against imperialism appeals not merely because it is an argument against imperialism, but because it seems true. There is a pluralistic of cultures in the world, and these cultures produce their own values. There are no universal values.” [66]

Professor Antonio Cassese also believes that universalism sounds like a ‘myth’ that conceals “underlying disputes and differences” since it is obvious that Socialists, Islamists, Buddhists, Hindus, etc., just like the West, have all differing perceptions of what legitimate rights are.[67] Langlois went a step further in arguing that “as long as human rights is centred around a particular non-universal tradition – Western liberalism (in all its variety) – it cannot be universal: it fails on its own terms.”[68] According to Susan Mendus, “of course, an understanding of human rights as merely manifestations of a particular tradition is entirely at odds with the universalism implicit in the language of rights”.[69] Professor David Kennedy of Harvard University also states that: “The human rights tradition might itself be undermined by its origin … perhaps we should downplay the universal claims, or look for parallel developments in other cultural traditions, etc.”